Nelson v. Toyota Motor Company et al

Filing 177

ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT. The Motion for Partial Summary Judgment [Doc. 94 ] is GRANTED in part and DENIED in part. Summary judgment is GRANTED insofar as Plaintiffs seek to strike the designations of Amy Nelson a nd Bradley Nelson as nonparties at fault, see [Doc. 85 ]. Summary judgment is DENIED insofar as Plaintiffs seek to strike the designation of Cecile Bender as a nonparty at fault with respect to her alleged attempts to inject Dennis Bender with insulin and/or attempts to turn off/on the ignition, see [id.], and GRANTED for all other theories. All pending deadlines in this matter REMAIN SET. By Judge Nina Y. Wang on 4/18/2023.(trvo, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Nina Y. Wang
Civil Action No. 20-cv-03119-NYW-KLM
Consolidated with Civil Action No. 21-cv-00104
WESLEY NELSON, by and through his conservator and guardian, AMY NELSON,
v.

Plaintiff,

TOYOTA MOTOR CORPORATION, and
TOYOTA MOTOR SALES, U.S.A. INC.,
Defendants.
ORDER ON MOTION FOR PARTIAL SUMMARY JUDGMENT
Pending before the Court is Plaintiff Wesley Nelson (“Plaintiff” or “Mr. Wesley
Nelson”), by and through his conservator and guardian, Amy Nelson’s Motion for Partial
Summary Judgment (the “Motion” or “Motion for Partial Summary Judgment”). [Doc. 94, filed
April 28, 2022]. Defendants filed a Response opposing the motion (the “Response”). [Doc. 97,
filed May 19, 2022]. Plaintiff filed a Reply. [Doc. 107, filed June 9, 2022]. The Court finds
that oral argument would not materially assist in the resolution of the issues presented in the
Motion. For the reasons set forth below, the Court GRANTS in part and DENIES in part the
Motion.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are drawn from the record in this case and are undisputed for the
purposes of resolving the instant Motion, unless otherwise noted.
This action stems from a motor vehicle accident that occurred on October 25, 2018 in
Adams County, Colorado. [Doc. 94 at ¶¶ 1–2; Doc. 97 at ¶¶ 1–2]. Plaintiff was the front-seat

passenger in a 2017 Toyota RAV4 (the “vehicle” or the “RAV4”) that was driven by his
grandfather, Mr. Dennis Bender (“Mr. Bender”), and his grandmother, Ms. Cecile Bender (“Ms.
Bender”). [Doc. 94 at ¶ 3; Doc. 97 at ¶ 3]. While moving eastbound on East 168th Avenue, Mr.
Bender lost control of the vehicle. [Doc. 94 at ¶ 4; Doc. 97 at ¶ 4]. The vehicle swerved into the
westbound lane, returned to the eastbound lane, and then continued south off the roadway. [Id.].
The vehicle collided with a utility pole, and rolled over three times before coming to rest on the
driver’s side. [Id.]. It is undisputed that “the front airbags, side-curtain airbags, and seatbelt
pretensioners did not deploy” during the crash. [Doc. 94 at ¶ 5; Doc. 97 at ¶ 5]. Ms. Bender was
ejected from the vehicle during the crash and died at the scene. [Doc. 94 at ¶ 6; Doc. 97 at ¶ 6].
She was not wearing her seatbelt at the time of the crash. [Doc. 97 at ¶ 59; Doc. 107 at ¶ 59].
Plaintiff sustained injuries in the crash as well, though the Parties dispute the extent of those
injuries relative to his pre-crash condition. [Doc. 94 at ¶ 6; Doc. 97 at ¶ 6].
On October 16, 2020, Plaintiff initiated this action against Defendants Toyota Motor
Company and Toyota Motor Sales, U.S.A., Inc. (collectively, “Defendants” or “Toyota”),
asserting product liability claims under strict liability (Count I) and negligence (Count II). [Doc.
1]. He then amended his pleading four days later, but maintained the same causes of action. See
[Doc. 4]. On October 23, 2020, Amy Nelson (“Ms. Nelson”), as surviving heir and daughter of
Ms. Bender, filed a second case against Defendants in the District Court of Adams County,
Colorado. (ECF No. 4.) 1 On January 13, 2021, Defendants removed that case to this Court,
Civil Action No. 21-cv-104-WJM-KLM. (ECF No. 1.) The second case arose from the same
motor vehicle accident and also alleged product liability claims based on strict liability and

1

The Court uses the convention [Doc. ___] to refer to filings on the Electronic Case Filing
(“ECF”) docket in this action. When referring to documents originally filed in Civil Action No.
21-cv-104-WJM-KLM, this Court uses (ECF No. ___) to distinguish between the dockets.
2

negligence. See [Doc. 39]. The actions were consolidated on April 20, 2021. [Id.]. On October
4, 2021, the Court accepted for filing the Second Amended Complaint, which continued to allege
product liability claims based on strict liability and negligence. [Doc. 60; Doc. 61].
Relevant here, on March 16, 2021, Defendants filed a Designation of Nonparties at Fault,
identifying Ms. Nelson; Bradley Nelson (“Mr. Brad Nelson”), Plaintiff’s father; and Ms. Bender.
[Doc. 37]. 2 Plaintiff moved for partial summary judgment to strike such Designation, which was
mooted by the Court upon the filing of the operative Third Amended Complaint that asserts one
claim for product liability based only on strict liability. [Doc. 80; Doc. 81]. Defendants then
filed a Designation of Non-Parties at Fault on January 31, 2022 (“Designation”), again
identifying Mr. Bender; Ms. Nelson; Mr. Brad Nelson; and Ms. Bender. [Doc. 85]. Plaintiff
filed the instant Motion for Partial Summary Judgment, renewing his request to strike Ms.
Nelson, Mr. Brad Nelson, and Ms. Bender as nonparties at fault. [Doc. 94]. Defendants
opposed, [Doc. 97], and Plaintiffs filed a Reply, [Doc. 107]. Thus, this Motion is ripe for
consideration.
LEGAL STANDARD
As an initial matter, the Court notes that the Parties dispute whether the underlying
Motion is properly construed as a motion for summary judgment under Rule 56 of the Federal
Rules of Civil Procedure, or if it should be construed as a motion to strike under Rule 12(f).
Compare [Doc. 94 at 6–7] with [Doc. 97 at 16–18]. There is a division of authority on this
question. Defendants argue that this Motion should be analyzed under Rule 12(f), reasoning that
Plaintiff is moving “to strike the nonparty designations of three individuals and eliminate [their]

2

Defendants previously identified Mr. Bender as a nonparty at fault in a separate filing. [Doc.
21]. Plaintiff has not challenged, and does not challenge, the designation of Mr. Bender as a
nonparty at fault. See [Doc. 94].
3

ability to argue certain affirmative defenses like the degree of fault of these nonparties.” [Doc.
97 at 15–16]. Plaintiff, on the other hand, argues that he is not moving to strike any defense;
rather, he requests “the Court to determine whether any of the non-parties designated by the
defendants owed the Plaintiff a duty of care as a matter of law,” and that the Motion should
accordingly be analyzed under a summary judgment standard. [Doc. 107 at 10].
Some courts in this District have noted that the “[d]esignation of a non-party at fault is a
pleading in the nature of an affirmative defense in that it pleads matters extraneous to [a]
plaintiff’s prima facie case and attempts to deny, in part, [a] plaintiff’s right to recover regardless
of the truth of the facts alleged in the complaint.” Resolution Trust Corp. v. Ascher, 839 F. Supp.
764, 766 (D. Colo. 1993) (citing Gomez v. Toledo, 446 U.S. 635, 640–41 (1980)). For that
reason, those courts have decided those motions “based on the same standard of review for
motions to strike affirmative defenses.”

Under that standard, a “contested non-party

Id.

designation will be stricken as insufficient pursuant to Fed. R. Civ. P. 12(f) if, as a matter of law,
the defense cannot succeed under any circumstance.” Id. (citing Fed. Deposit Ins. Corp. v.
Isham, 782 F. Supp. 524, 530 (D. Colo. 1992)).
Other courts in Colorado and this District have analyzed similar motions under the
standards for summary judgment prescribed by Federal Rule of Civil Procedure 56. See, e.g.,
Phillips v. Miser, No. 19-cv-3332-WJM-SKC, 2021 WL 4914395, at *1 (D. Colo. Aug. 12,
2021); Manula v. Kelley Trucking, Inc., No. 2007 CV 228, 2010 WL 8933226 (Colo. Dist. Ct.
Jan. 13, 2010) (denying summary judgment as to a designated nonparty at fault). This Court has
similarly noted the potential that such motions could be analyzed at summary judgment, though
without expressly passing on the procedural issue that is extant in this case. McGraw v. Cobra
Trucking Inc., No. 20-cv-01032-NYW, 2020 WL 7230637, at *5 (D. Colo. Dec. 8, 2020). Still

4

other cases analyze similar motions as those to strike a designation but, in the alternative, for
partial summary judgment. See Larrieu v. Best Buy Stores, L.P., No. 10-cv-01883-CMA-BNB,
2013 WL 4838912, at *1–4 (D. Colo. Sept. 9, 2013). A motion for partial summary judgment is
reviewed using the same standard as a motion for summary judgment. See Applied Genetics
Int’l, Inc. v. First Affiliated Sec., Inc., 912 F.2d 1238, 1241 (10th Cir. 1990). The Court may
grant summary judgment only where “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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Put differently, the Court’s
function at summary judgment “is not ‘to weigh the evidence and determine the truth of the
matter but to determine whether there is a genuine issue for trial.’” Tolan v. Cotton, 572 U.S.
650, 656 (2014) (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 249 (1986)).
The United States Court of Appeals for the Tenth Circuit (“Tenth Circuit”) has not
squarely addressed whether motions challenging the designations of a nonparty at fault under a
state statute should be raised as motions to strike or as motions for summary judgment. See
Jones v. Krautheim, 208 F. Supp. 2d 1173, 1174 (D. Colo. 2002) (observing that “[o]rdinarily,
federal courts sitting in diversity cases apply federal procedural law and state substantive law”
(first citing Hanna v. Plumer, 380 U.S. 460 (1965); and then Gasperini v. Ctr. for Humanities,
Inc., 518 U.S. 415 (1996))). Here, Plaintiff does not challenge the sufficiency of the pleading,
e.g., whether the nonparties have been sufficiently identified. See [Doc. 94]; cf. Pedge v. RM
Holdings, Inc., 75 P.3d 1126, 1128 (Colo. App. 2002) (noting that “[b]efore the finder of fact
may consider the negligence or fault of a nonparty, the issue must be properly raised by a
defendant”). Rather, he challenges whether these individuals can be designated as nonparties at
fault as a matter of law and whether Defendants have adduced sufficient evidence to present to a

5

jury to allow it to find the nonparties negligent. See [Doc. 94]. In addition, significant discovery
has been taken, discovery is presumably closed, [Doc. 90], and the Parties were proceeding to
trial. It is clear that Tenth Circuit law permits a plaintiff to move for summary judgment on an
affirmative defense. Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997) (“A defendant may
use a motion for summary judgment to test an affirmative defense which entitles that party to a
judgment as a matter of law.”). And Colorado courts have observed that “where a defendant
designates a nonparty at fault and presents no evidence of liability, the court should not submit
that claim to the jury.” Barton v. Adams Rental, Inc., 938 P.2d 532, 536 (Colo. 1997). In these
specific circumstances, this Court finds that the appropriate framework is one for partial
summary judgment as to the affirmative defense of a nonparty’s fault. Thus, this Court will
apply such standard to its analysis herein, i.e., Defendants must provide credible evidence
establishing each essential element of the defense. 3 Cf. Est. of Grubbs v. Weld Cnty. Sheriff’s
Off., No. 16-cv-00714-PAB-STV, 2018 WL 3145629, at *15 (D. Colo. June 26, 2018)
(considering judgment as a matter of law with respect to an officer who had been designated a
nonparty at fault for a detainee’s suicide).
ANALYSIS
I.

Designation of Nonparty at Fault
“As part of the tort reform movement in Colorado, the General Assembly eliminated joint

and several liability wherein one tortfeasor might be liable in damages for the acts of another
tortfeasor, and adopted a several liability scheme, wherein a tortfeasor is responsible only for the
3

This Court is not persuaded that Defendants’ cited authority mandates otherwise. For instance,
Sender v. Mann, 423 F. Supp. 2d 1155 (D. Colo. 2006), did not involve the designation of
nonparties at fault. In addition, the plaintiff in Sender did not seek to deny defendants the right
to assert certain affirmative defenses, but only to reduce confusion in the pleadings. Id. at 1163.
Thus, the dissimilarities between the two cases limits the applicability of the Sender case to this
one.
6

portion of the damages that he or she caused.” Slack v. Farmers Ins. Exch., 5 P.3d 280, 284
(Colo. 2000). 4 Under Colorado Revised Statute § 13-21-111.5(1),
[i]n 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[.]
In this type of case, Colorado law dictates that liability be attributed on the basis of a “degree or
percentage of the negligence or fault.” Id. Section 13-21-111.5 provides, in relevant portion:
(3)(a) Any provision of the law to the contrary notwithstanding, the finder of fact
in a civil action may consider the degree or percentage of negligence or fault of a
person not a party to the action, based upon evidence thereof, which shall be
admissible, in determining the degree or percentage of negligence or fault of those
persons who are parties to such action. . . .
(b) Negligence or fault of a nonparty may be considered if the claimant entered
into a settlement agreement with the nonparty or if the defending party gives
notice that a nonparty was wholly or partially at fault within ninety days
following commencement of the action unless the court determines that a longer
period is necessary. The notice shall be given by filing a pleading in the action
designating such nonparty and setting forth such nonparty’s name and last-known
address, or the best identification of such nonparty which is possible under the
circumstances, together with a brief statement of the basis for believing such
nonparty to be at fault.
Colo. Rev. Stat. § 13-21-111.5(3)(a)–(b). One purpose of the designation is to allow a defendant
to attempt to reduce its liability where others may have also contributed to the plaintiff’s injury.
See Pledge v. RM Holdings, Inc., 75 P.3d 1126, 1128 (Colo. App. 2002) (“This designation
ensures that parties found liable will not be responsible for more than their fair share of the
damages.”). But the Colorado Supreme Court has instructed that “[c]ourts should construe
designation requirements strictly to avoid a defendant attributing liability to a non-party from
4

Colorado substantive law applies, as this case concerns a single claim raised under Colorado
state law, and is premised upon diversity jurisdiction conferred by 28 U.S.C. § 1332(a)(1)–(2).
See [Doc. 80 at ¶¶ 6, 41–47]; Erie R. Co. v. Tompkins, 304 U.S. 64 (1938); Hanna, 380 U.S. at
465 (noting that the Erie doctrine has been interpreted to mean that federal courts are to apply
state substantive law, but federal procedural law).
7

whom the plaintiff cannot recover.” Redden v. SCI Colo. Funeral Servs., Inc., 38 P.3d 75, 80
(Colo. 2001) (en banc), as modified on denial of reh’g (Jan. 14, 2002). It is not enough for a
nonparty to be a cause of the alleged injury. See id. (“The first question before us in this
petition, then, is whether a simple statement supporting only ‘causation’ satisfies a statutory
requirement of an allegation of ‘fault or negligence.’ We hold that it does not.”).
Instead, the party designating a nonparty at fault must be able to demonstrate that the
nonparty at fault is either negligent or at fault legally:
In well-settled tort jurisprudence, a claimant alleging negligence of another party
must establish the existence of a duty, a breach of that duty, causation, and
damages. Fault is broader than negligence, including, for example, intentional
torts, but it likewise implies legal responsibility for the purposes of the
designation statute.
Redden, 38 P.3d at 80 (citation omitted).
II.

Defendants’ Designation
Defendants designated each individual as nonparty at fault for separate reasons, as

follows:
Ms. Amy Nelson is Plaintiff’s mother, conservator, and guardian. Ms. Nelson was
on the phone with Plaintiff during the Incident and might have directed Plaintiff
to intervene by, for instance, turning off the vehicle, redirecting the wheel, or
placing the vehicle into park. In addition, Ms. Nelson might have directed Mr.
Bender to drive, encouraged Mr. Bender to drive, failed to intervene in Mr.
Bender driving, or permitted Mr. Bender to drive despite knowledge of Mr.
Bender’s history of diabetes and incapacitating diabetic incidents; this placed
Plaintiff in a foreseeable and unreasonable risk of harm.
Ms. Cecile Bender is Plaintiff’s late grandmother and was in the vehicle when the
Incident occurred. Ms. Bender might have contributed to the crash and Plaintiff’s
injuries by intervening in the Incident by, for instance, turning off the vehicle,
redirecting the wheel, placing the vehicle into park, or attempting to inject Mr.
Bender with insulin. She also might have directed or encouraged Plaintiff to
intervene in a similar way. Ms. Bender also might have contributed to Plaintiff’s
injuries by failing to wear a seatbelt and being unrestrained during the crash.
Further, Ms. Bender might have directed Mr. Bender to drive, encouraged Mr.

8

Bender to drive, failed to intervene in Mr. Bender driving, or permitted Mr.
Bender to drive despite knowledge of Mr. Bender’s history of diabetes and
incapacitating diabetic incidents. This placed Plaintiff in a foreseeable and
unreasonable risk of harm.
Mr. Bradley Nelson is Plaintiff’s father. Mr. [Brad] Nelson might have directed
Mr. Bender to drive, encouraged Mr. Bender to drive, failed to intervene in Mr.
Bender driving, or permitted Mr. Bender to drive despite knowledge of Mr.
Bender’s history of diabetes and incapacitating diabetic incidents. This placed
Plaintiff in a foreseeable and unreasonable risk of harm.
[Doc. 85 at 5–7 (emphasis added)].
In reviewing Defendants’ Designation and their Response to the instant Motion, there is
no identification of an intentional tort committed by Ms. Bender, Ms. Nelson, or Mr. Brad
Nelson against Mr. Wesley Nelson. See [Doc. 85; Doc. 97]; Restatement (Second) of Torts § 8A
cmt. a–b (1965) (defining “[i]ntent, as it is used throughout the Restatement of Torts,” as having
“reference to the consequences of an act rather than the act itself” with the following illustration:
“On a curve in a narrow highway A, without any desire to injure B, or belief that he is
substantially certain to do so, recklessly drives his automobile in an attempt to pass B’s car. As a
result of this recklessness, A crashes into B’s car, injuring B. A is subject to liability to B for his
reckless conduct, but is not liable to B for any intentional tort.”). Therefore, this Court limits its
consideration to whether it can decide, as a matter of law based on the record before it, that Ms.
Bender, Ms. Nelson, and Mr. Brad Nelson could not be negligent.
III.

Analysis
“Under Colorado law, to recover for the negligent conduct of another, a plaintiff must

establish: 1) the existence of a legal duty owed to the plaintiff by the defendant; 2) breach of that
duty; 3) injury to the plaintiff; and 4) actual and proximate causation.” Ireland v. Jefferson Cnty.
Sheriff’s Dep’t, 193 F. Supp. 2d 1201, 1227–28 (D. Colo. 2002) (citing Leake v. Cain, 720 P.2d
152, 155 (Colo. 1986)). In the Motion for Partial Summary Judgment, Plaintiff contends that

9

none of these individuals are appropriate nonparties at fault because none of them owed Mr.
Wesley Nelson, as an independent adult, a duty of care. See generally [Doc. 94]. Defendants’
arguments in response are manifold, but they contend, inter alia, that both Mr. Brad Nelson and
Ms. Nelson had a special relationship with Mr. Wesley Nelson due to his mental health
condition; 5 that no special relationship was required to permit a finding of duty even in the
context of nonfeasance; that Ms. Nelson’s and/or Ms. Bender’s affirmative actions breached a
duty of care even absent a special relationship; and Ms. Nelson, Mr. Brad Nelson, and that Ms.
Bender breached a duty by failing to prevent Mr. Bender from driving Plaintiff. See [Doc. 97].
On Reply, Plaintiff argues that much of Defendants’ adduced facts—though apparently
undisputed—are immaterial, and that Ms. Bender did not owe any duty of care to Mr. Wesley
Nelson. [Doc. 107]. This Court begins its analysis with Mr. Brad Nelson, as it is the simplest.
A.

Mr. Brad Nelson
1.

Duty to Prevent Mr. Bender From Driving

Though not argued in the pending Motion, the Court first considers whether Mr. Brad
Nelson can be liable for negligence based on his failure to prevent Mr. Bender from driving, as
argued by Defendants. See [Doc. 97 at 31]. In support of this theory, Defendants rely on Mr.
Brad Nelson’s completion of a medical history form after the accident to demonstrate that he was
familiar with Mr. Bender’s diabetic history. [Id.].
“[T]he person or entity designated under § 13–21–111.5 must, in order for his or her fault
or negligence to be measured under the statute, owe or have owed a duty recognized by the law
to the injured plaintiff.” Miller v. Byrne, 916 P.2d 566, 578 (Colo. App. 1995). Generally, a
person does not have a duty to prevent a third person from harming another unless a special
5

Defendants do not contend that either Mr. Bender or Ms. Bender had a special relationship with
Mr. Wesley Nelson. See generally [Doc. 97].
10

relationship exists between the defendant and the wrongdoer or between the defendant and the
victim. See Ireland, 193 F. Supp. 2d at 1228; Lego v. Schmidt, 805 P.2d 1119, 1122 (Colo. App.
1990) (observing that “a duty to control the conduct of a third person to prevent him from
causing physical harm to another only if a special relation exists between the actor and either the
wrongdoer or the victim”).
Relying upon Lopez v. Trujillo, 399 P.3d 750, 753 (Colo. App. 2016), Defendants argue
that a “special relationship” is just one of the factors that the Court should consider as to whether
there is a duty flowing from Ms. Nelson to her son that was violated by her actions. See [Doc.
97 at 21–22]. In doing so, they ignore the Colorado Supreme Court’s determination on appeal
from that very case. On appeal, the Colorado Supreme Court clearly articulated that when the
theory of negligence is based on the failure to act, i.e., nonfeasance, “the existence of a duty has
been recognized only during the last century in situations involving a limited group of special
relationships between parties.” N.M. by & through Lopez v. Trujillo, 397 P.3d 370, 374 (Colo.
2017) (citing Univ. of Denver v. Whitlock, 744 P.2d 54, 57 (Colo. 1987)); see also Fine v.
Tumpkin, 330 F. Supp. 3d 1246, 1253 (D. Colo. 2018) (observing that under Colorado law,
nonfeasance cases require the party asserting negligence to establish “that a special relationship
exists between the parties such that social policy justifies the imposition of a duty to act”
(quoting Montoya v. Connolly’s Towing, Inc., 216 P.3d 98, 104 (Colo. App. 2008)). Indeed, the
N.M. court explained that “we have generally declined to impose a duty of care in cases
involving a defendant’s nonfeasance, absent a special relationship between the parties.” N.M.,
397 P.3d at 374. This Court finds no authority or basis to deviate from this well-settled law.
Special Relationship. Here, Defendants make no specific argument that there is a special
relationship between Mr. Brad Nelson and Mr. Bender, who were two independent adults.

11

Defendants present no evidence that Mr. Brad Nelson was responsible for or even active in any
management of Mr. Bender’s diabetes before the collision. See generally [Doc. 97]. Rather,
they merely point to Mr. Bender’s role in filling out a post-incident medical form to establish Mr.
Brad Nelson’s “familiar[ity]” with Mr. Bender’s medical conditions. [Id. at 30]. There is
insufficient evidence to infer the level of control necessary to create a special relationship
between Mr. Brad Nelson and Mr. Bender. Cf. Davenport v. Cmty. Corr. of Pikes Peak Region,
Inc., 962 P.2d 963, 968 (Colo. 1998) (“Whether a special relationship exists between [the
nonparty] and [the tortfeasor driver] depends, in large part, upon the level of control exercised by
[the nonparty] over [the driver].”), as modified on denial of reh’g (July 27, 1998).
Even assuming a special relationship that exists (which the Court finds, does not), there
would not be a resulting duty to prevent Mr. Bender from driving by looking at other relevant
factors. 6 See Solano v. Goff, 985 P.2d 53, 54 (Colo. App. 1999) (“In determining whether a
defendant owes a legal duty to prevent a third person from harming another, the following
factors are generally considered: (1) the existence of a special relationship between the parties;
(2) the foreseeability of harm to others; (3) the social utility of the defendant’s conduct; (4) the
magnitude of the burden of guarding against injury or harm; and (5) the practical consequences
of placing a duty upon the defendant.”). A touchstone for the duty to exercise reasonable care is
foreseeability; any such duty can only extend only to reasonably foreseeable damages and
injuries to reasonably foreseeable plaintiffs. See Leppke v. Segura, 632 P.2d 1057, 1059 (Colo.

6

Even in cases where a special relationship exists, the Colorado Supreme Court has looked to
additional factors to determine the existence and contours of such duty. See Westin Operator,
LLC v. Groh, 347 P.3d 606, 613–14 (Colo. 2015) (“To determine whether a defendant owes a
plaintiff a duty to act to avoid injury, we assess: (1) the risk involved in the defendant’s conduct;
(2) the foreseeability5 and likelihood of injury weighed against the social utility of the
defendant’s conduct; (3) the magnitude of the burden of guarding against the injury; and (4) the
consequences of placing that burden on the defendant.”).
12

App. 1981). In addition, the duty owed must be measured by the foreseeability of the specific
risk and whether the danger created is sufficiently large to embrace the specific harm. See Brady
v. Hopper, 570 F. Supp. 1333, 1338 (D. Colo. 1983), aff’d, 751 F.2d 329 (10th Cir. 1984).
There is no evidence that Mr. Brad Nelson observed Mr. Bender in an impaired state on
the date of the collision, or that he was even aware that Mr. Bender was driving Plaintiff prior to
the accident. See [Doc. 85 at 6]. Nor is there any evidence that Mr. Bender had previously had
any type of difficulty driving due to his diabetes.

See generally [Doc. 97].

Though the

Designation posits that “Mr. [Brad] Nelson might have directed” or “encourage Mr. Bender to
drive,” [Doc. 85 at 6], Defendants have identified no such evidence in the record before the
Court. Defendants cannot rely upon unsubstantiated allegations or mere speculation, conjecture,
or surmise to avoid summary judgment proceedings; rather, they must supply admissible
evidence. See Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
Based on the record before the Court, even weighing other factors “including the social
utility of the defendant’s conduct, the magnitude of the burden of guarding against the harm
caused to the plaintiff, the practical consequences of placing such a burden on the defendant, and
any additional elements disclosed by the particular circumstances of the case,” Connes v.
Molalla Transp. Sys., Inc., 831 P.2d 1316, 1320 (Colo. 1992), this Court finds no basis to extend
the limited types of special relationships defined by the Colorado courts in the last century to
include the relationship between Mr. Brad Nelson and Mr. Bender based on the circumstances
presented herein. In turn, this Court concludes that Mr. Brad Nelson had no duty to prevent Mr.
Bender from driving Mr. Wesley Nelson (or anyone else) on the date of the collision. 7

7

Here, the Court cannot overlook the practical implications and social burdens of imposing a
duty upon Mr. Nelson to essentially monitor the medical condition and driving abilities of his
father-in-law—another adult with whom he has no legal custodial relationship and over which he
13

2.

Duty to Prevent Mr. Wesley Nelson from Riding with Mr. Bender

Next, the Court considers Defendants’ theory that Mr. Brad Nelson can be liable for
negligence because he owed a duty of care to Mr. Wesley Nelson based on their special
relationship or other factors to prevent him from riding with Mr. Bender.
Special Relationship. “Special relationships are predicated on some definite relation
between the parties of such a character that social policy justifies the imposition of a duty to act.”
Ireland, 193 F. Supp. 2d at 1228 (quotation omitted). It is clear that a parent has a special
relationship with a minor child. See Doering ex rel. Barrett v. Copper Mountain, Inc., 259 F.3d
1202, 1216 (10th Cir. 2001); Paris ex rel. Paris v. Dance, 194 P.3d 404, 408 (Colo. App. 2008)
(holding that a parent could be designated as a nonparty at fault for a dog bite suffered by a
minor based on alleged failure to supervise), superseded by statute on other grounds, Ch. 168,
sec. 1, § 13-21-124, 2004 Colo. Sess. Laws 507–08.
It is, however, not established that a parent has a special relationship with a legally
emancipated adult child, 8 even if the adult child is “incapable of supporting himself because of
his disabilities.” [Doc. 97 at 27]. Defendants cite no authority for the proposition, or the
proposition that the very nature of the relationship between Mr. Brad Nelson and his son gives
rise to a duty owed by Mr. Brad Nelson to Plaintiff that includes preventing him from riding with
Mr. Bender. See [id.]. Because it appears that the Colorado Supreme Court has not passed on
the issue of whether a parent has a “special relationship” with an emancipated adult child who
has no legal control. Cf. Sego v. Mains, 578 P.2d 1069, 1072 (Colo. App. 1978) (holding a son
who acted as the custodian of his mentally ill mother could not be liable for her tort under a
negligence per se theory, because “in the absence of proof that a mentally ill person is dangerous
to others, the custodian will not be held as a guarantor of the public safety. To hold otherwise
would be to treat the custodian unfairly.” (citations omitted)).
8

Defendants do not dispute that at the time of the collision, Mr. Wesley Nelson was legally
emancipated from his parents. See generally [Doc. 97].
14

may be mentally and/or physically impaired in some manner, this Court must attempt to
determine how the Colorado Supreme Court would rule. See Pehle v. Farm Bureau Life Ins.
Co., 397 F.3d 897, 901–02 (10th Cir. 2005). In doing so, this Court is “free to consider all
resources available, including decisions of [Colorado] courts, . . . in addition to the general
weight and trend of authority.” FDIC v. Schuchmann, 235 F.3d 1217, 1225 (10th Cir. 2000).
“One who is required by law to take or who voluntarily takes the custody of another
under circumstances such as to deprive the other of his normal opportunities for protection is
under a similar duty to [aid or protect] the other.” Restatement (Second) of Torts § 314A(4)
(1965). Section 320 of the Restatement (Second) further provides:
One who is required by law to take or who voluntarily takes the custody of
another under circumstances such as to deprive the other of his normal power of
self-protection or to subject him to association with persons likely to harm him, is
under a duty to exercise reasonable care so to control the conduct of third persons
as to prevent them from intentionally harming the other or so conducting
themselves as to create an unreasonable risk of harm to him, if the actor
(a) knows or has reason to know that he has the ability to control the conduct of
the third persons, and
(b) knows or should know of the necessity and opportunity for exercising such
control.
Id. at § 320.
“Central to there being a special relation between actor and wrongdoer is a determination
that the actor has the right and capacity to control the wrongdoer.” Lego, 805 P.2d at 1122
(emphasis added). Here, there is no evidence in the record to suggest that at the time of the
accident, Mr. Brad Nelson was required to take or had legal custody of Mr. Wesley Nelson. See
generally [Doc. 97]. Nor evidence that Plaintiff had been deemed legally incompetent, or legally
incapacitated. [Id.]. It is also undisputed that Mr. Brad Nelson was not a legal guardian or
conservator for Mr. Wesley Nelson at that time; it is undisputed that the guardianship of Mr.

15

Wesley Nelson by his parents was not established until April 2019—six months after the
collision. See [Doc. 94-5]. Nor is there evidence that Mr. Brad Nelson had a legal right to
control his son through any other means, or that Mr. Wesley Nelson was incapable of effectively
exercising self-protective care such as refusing to ride with his grandfather on the date of the
collision.
Whether or not Mr. Brad Nelson is listed as an emergency contact for his son does not
speak to his ability to legally control Mr. Wesley Nelson. See [Doc. 97 at ¶ 33]. Similarly,
whether or not Mr. Wesley Nelson could financially support himself at the time of the collision,
and the case law associated with financial support, are inapposite because the issue is not one of
financial support, but one of preventing bodily harm to Plaintiff. Even drawing all inferences
regarding Mr. Wesley Nelson’s struggles with mental health issues and independent living skills
in favor of Defendants, see [id. at ¶¶ 31–49], there is not a genuine issue of material fact that Mr.
Brad Nelson had a legal right to control his son’s actions, or stood in the way of his son being
able to make decisions about his own care, at the time of the collision.

Indeed, like the

Connecticut Supreme Court observed, neither this Court’s research—nor the authority provided
by Defendants—“has disclosed any case in which a parent, merely by making a home for an
adult child who is a mental patient, has been held to be ‘[o]ne who takes charge of a third
person[.]’” Kaminski v. Town of Fairfield, 578 A.2d 1048, 1052 (Conn. 1990).
This Court’s focus on whether Mr. Brad Nelson had legal control over his son at the time
of the accident is not a matter of semantics, but rather, one that is supported by analogous case
law and public policy. When considering whether a parent has a special relationship with an
adult child with mental health and/or disability issues to justify a negligence action brought by a
third party injured by that child, state courts have recognized that generally, subject to limited

16

exceptions, “no such duty exists between parents and their emancipated adult children.” See
Adams v. Aircraft Spruce & Specialty Co., 283 A.3d 42, 50 n.9 (Conn. App. 2022) (citing
Kimberly C. Simmons, Annotation, Liability of Adult Assailant’s Family to Third Party for
Physical Assault [hereinafter “Liability for Adult Assailant”], 25 A.L.R. 5th 1, § 2[b] (1994)
(“Courts . . . rarely find justification for imposing liability on parents for the conduct of their
adult, emancipated children and hold that where there is no legal right to control the children,
there can be no liability imposed on the parent.”)). “Most courts hold that members of an
assailant’s family do not have a duty either to warn third persons of potential danger posed by
the assailant or to control the actions of the assailant in relation to third persons.” Simmons,
Liability for Adult Assailant, 25 A.L.R. 5th 1. In addition, state courts have also found that a
parent’s role in an adult child’s mental health care does not create a duty to supervise the child.
See, e.g., Koenig v. London, 968 N.W.2d 646, 659 (S.D. 2021). Indeed, Defendants identify, and
this Court’s independent research generated, no authority from any state or federal court that
found a special relationship between a parent and a legally emancipated adult child.

See

generally [Doc. 97].
Public policy supports the conclusion that as a general matter, a parent of a legally
emancipated adult child does not have a special relationship giving rise to a duty to protect that
emancipated adult child from harm, even with knowledge of that adult child’s mental health or
functional limitations and even when that emancipated adult child lives with his parent. First,
potential liability to a parent for failing to protect an adult child for whom she does not have
legal control would be incongruous, because she does not have the legal right to prevent the adult
child from taking any action. Second, imposing a duty upon a parent for a legally emancipated
child based on material or emotional support for known limitations discourages, rather than

17

encourages, the social good from such support. Third, the presumption of a special relationship
undercuts the autonomy of an emancipated adult child and introduces an inference of parental
control that is not supported by law (and may not be supported in fact).
Even if a special relationship existed here, Defendants fail to present sufficient evidence
to suggest that the risk presented by Mr. Bender to Mr. Wesley Nelson was reasonably
foreseeable to Mr. Brad Nelson, or that any of the other factors weigh in favor of the finding of a
duty owed by Mr. Brad Nelson to his son. See generally [Doc. 97]. Further, there are no
allegations of affirmative conduct, i.e., misfeasance, on the part of Mr. Brad Nelson. See
generally [id.]. Accordingly, this Court concludes that no such duty existed as a matter of law,
and GRANTS summary judgment in favor of Plaintiff as to the issue of Defendants’ designation
of Bradley Nelson as a nonparty at fault.
B.

Amy Nelson
1.

Duty to Prevent Mr. Bender From Driving

Special Relationship.

Courts outside of Colorado have noted that “the natural

relationship between the parties (that of adult daughter and father) creates no inference of an
ability to control.” Megeff v. Doland, 123 Cal. App. 3d 251, 261 (Ct. App. 1981). Indeed, it is
“[t]he ability to control the [parent], rather than the relationship as such,” which forms “the basis
for a finding of liability on the part of” the adult child. Id. (citation omitted). Here, there is also
no evidence in the record that indicates that Ms. Nelson had legal control over her father, Mr.
Bender, to give rise to a special relationship. In addition, even accepting the facts as presented
by Defendants about Mr. Bender’s prior diabetic events as true; the records of the 911 calls
referenced by Defendants do not reflect Ms. Bender’s specific knowledge of those events or the
underlying details. See [Doc. 97 at ¶ 85; Doc. 98-29; Doc. 98-30]. With respect to the 911

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which recorded Ms. Bender, see [Doc. 97 at ¶ 50; Doc. 98-19; Doc. 99], it is undisputed that the
call was made after the incident in question, see [Doc. 97 at ¶ 50], and therefore, cannot be used
to support foreseeability as of the time of the collision. Further, upon review of the recording,
there is insufficient evidence to infer that such an event was incapacitating. See [Doc. 98-19
(referring to a reading of a Dexcom monitoring system); Doc. 97 at ¶ 54]. There is no evidence
in the record that, prior to the date of the accident, Mr. Bender ever had an incident,
incapacitating or otherwise, while driving. See generally [Doc. 97]. And there is insufficient
information regarding the diabetic incidents prior to the accident to demonstrate that Ms. Nelson
should have reasonably inferred that Mr. Bender could suffer an incapacitating diabetic incident
while driving. See [id.]. For these reasons and those set forth above, this Court concludes that
Ms. Nelson did not have a special relationship with her father to give rise to a duty of care to
prevent Mr. Bender from driving.
2.

Duty to Prevent Mr. Wesley Nelson from Riding

Special Relationship. Again, there is no evidence in the record that indicates Ms. Nelson
had any legal control over Mr. Wesley Nelson, as a legally emancipated adult. Contrary to
Defendants’ argument, the record does not support the conclusion that Mr. Wesley Nelson had
been discharged from the hospital nine days earlier into his mother’s legal control. Rather, the
discharge notes simply indicate that “Pt. left the facility with his mother,” not that he was
discharged into her legal custody and care. See [Doc. 97-6 at 7; Doc. 107 at ¶ 33]. For the
reasons set forth above, this Court concludes that Ms. Nelson did not have a special relationship
with Mr. Wesley Nelson to give rise to a duty to prevent him from riding with Mr. Bender.

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3.

Ms. Nelson’s Affirmative Actions

Defendants further contend that even absent a special relationship, Ms. Nelson could be
liable for negligence by preventing Mr. Wesley Nelson from driving and encouraging or
directing Mr. Bender to transport him. [Doc. 97 at 29–30]. Defendants further contend that Ms.
Nelson could be found liable because she negligently or recklessly directed Mr. Wesley Nelson
to intervene. [Id. at 30]. Although not characterized as such, Defendants implicitly argue that
Ms. Nelson’s affirmative actions constitute misfeasance, i.e., the defendant has created a new
risk of harm to the plaintiff. See Western Innovations, Inc. v. Sonitrol Corp., 187 P. 3d 1155,
1158–59 (Colo. App. 2008); [Doc. 97 at 29–30 (“Again, individuals have some fault when they
create or further dangerous situations. . . . Accordingly, Amy Nelson created or furthered the
foreseeably risky situation of Dennis Bender driving Plaintiff despite Dennis Bender’s
propensity for incapacitating diabetic incidents.”). “In determining whether to recognize a duty
in a misfeasance case, courts must consider many factors, including the risk involved, the
foreseeability and likelihood of injury as weighed against the social utility of the actor’s conduct,
the magnitude of the burden of guarding against injury or harm, and the consequences of placing
the burden on the actor.” Smit v. Anderson, 72 P.3d 369, 373 (Colo. App. 2002).
Requesting Mr. Bender to Drive Mr. Wesley Nelson. In weighing these factors, this
Court concludes that the circumstances presented do not give rise to a duty on the part of Ms.
Nelson with respect to having her father drive her son. As discussed above, while Ms. Nelson
understood her father’s management of his diabetic incidents had declined, there is no evidence
in the record that demonstrates that she knew of any prior incapacitating events—particularly
while driving. See generally [Doc. 97]. There is also no evidence in the record that Mr. Bender
had any moving violations or traffic infractions associated with or arising from his diabetes prior

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to the collision. See [id.]. There is no evidence that any medical provider or legal authority had
ever directed, or even suggested to, Mr. Bender that he should not drive. There is also no
evidence that Ms. Nelson observed her father acting in an unsafe manner on the day of the
collision, prior to receiving a call from her son.

See [id.].

If anything, Ms. Nelson was

attempting to guard Mr. Wesley Nelson and the general public from harm by asking her father to
transport her son.
Directing Her Son to Get His Grandfather to Pull Over. The Court next considers
whether Ms. Nelson was negligent in directing Mr. Wesley Nelson to intervene. As noted by
Defendants, Plaintiff argues that “there is no evidence that Wesley acted on that suggestion.”
[Id. at 30 (citing [Doc. 94 at 15])]. Again, this Court concludes that Ms. Nelson had no duty.
Indeed, in weighing the foreseeability and likelihood of injury in directing Mr. Wesley Nelson to
“get his grandfather to pullover” against the overall social utility of the instruction, legal
authority and common-sense weighs in favor of Ms. Nelson’s direction to her son. And the
potential burden of imposing a duty upon Ms. Nelson—a non-passenger reacting to an
emergency through a phone call—appears untenable.

Accordingly, this Court respectfully

GRANTS summary judgment in favor of Plaintiff as to the issue of Defendants’ designation of
Amy Nelson as a nonparty at fault.
C.

Cecile Bender
1.

Duty to Prevent Dennis Bender from Driving

Although it is undisputed that Ms. Nelson reported her mother “was the one who was
tracking his variable blood sugars and making him eat when his [blood sugar] was low,” [Doc.
97 at ¶ 83], this fact does not establish any legal control or custody by Ms. Bender over her
husband to justify a special relationship. Indeed, Defendants point to no authority in which

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Colorado courts have found such a duty between spouses. Other courts outside this jurisdiction
have declined to find a special relationship between spouses, even one who knows of her
spouse’s propensity for violence, finding that “[t]he absence of such ability [to control] is fatal to
a claim of legal responsibility. . . . Where, as in the instant case, the natural relationship between
the parties . . . creates no inference of an ability to control, the actual custodial ability must
affirmatively appear.” Megeff, 123 Cal. App. 3d at 261. For these reasons and those discussed
above, this Court concludes that Ms. Bender did not have a special relationship with her
husband, and thus, owed no duty to prevent Mr. Bender from driving.
2.

Affirmative Actions by Ms. Bender

With respect to Ms. Bender, Defendants offer evidence that (1) she was not wearing her
seatbelt at the time of the accident, [Doc. 97 at ¶ 59 (citing [Doc. 97-2 at 9])]; (2) their experts
posited that, “more likely than not, one of the occupants of the vehicle made an attempt to stop or
regain control of the vehicle by turning the ignition key to the off position,” [Doc. 97-1 at 11];
(3) that the crash scene findings were “consistent with [Ms.] Bender being unrestrained and
positioned between the front seats as the Toyota translated toward the utility pole,” [id. at 12];
(4) the airbags and pretensioners did not deploy because the ignition had been turned off, and
then turned back on, immediately prior to impact, [id. at 11]; (5) an insulin syringe was found on
the floor mat of the right front seat during an inspection, [id. at 9, 12]; and (6) Plaintiff’s medical
record states that “GF had a diabetic seizure on the way home from therapy resulting in GM
trying ti [sic] give him insulin crashing the car and damaging,” [Doc. 97-11 at 16].
While Plaintiff denies that Ms. Bender was attempting to give Mr. Bender insulin, see
[Doc. 107 at ¶ 56 (citing [Doc. 107-2 at 50:6–18, 51:5–24])], and indicates that he has stipulated
that Mr. Bender was negligent, [id. at ¶ 55], this Court must view the evidence and draw all

22

inferences in favor of Defendants as the nonmoving party. Phillips, 2021 WL 4914395, at *1.
In addition, the Court must resolve factual ambiguities against the moving party. Id. In applying
this standard, this Court cannot determine, as a matter of law, that Ms. Bender did not have any
duty or that the risks of her affirmative actions were not of the type to be within the scope of any
such duty. Thus, this Court finds that summary judgment with respect to any duty and liability
on the part of Ms. Bender is precluded.
Accordingly, the Court respectfully DENIES Plaintiff’s Motion for Partial Summary
Judgment, only with respect to Defendants’ designation of Cecile Bender as a nonparty at fault
limited to her affirmative actions.
CONCLUSION
For the reasons set forth above, IT IS ORDERED that:
(1)

The Motion for Partial Summary Judgment [Doc. 94] is GRANTED in part and
DENIED in part;

(2)

Summary judgment is GRANTED insofar as Plaintiffs seek to strike the
designations of Amy Nelson and Bradley Nelson as nonparties at fault, see [Doc.
85];

(3)

Summary judgment is DENIED insofar as Plaintiffs seek to strike the designation
of Cecile Bender as a nonparty at fault with respect to her alleged attempts to
inject Dennis Bender with insulin and/or attempts to turn off/on the ignition, see
[id.], and GRANTED for all other theories; and

(4)

All pending deadlines in this matter REMAIN SET.

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DATED: April 18, 2023

BY THE COURT:

_________________________
Nina Y. Wang
United States District Judge

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