McDaniel et al v. United States of America et al
Filing
620
MEMORANDUM OPINION AND ORDER by Chief District Judge William P. Johnson granting in part (1480) Motion for Judgment on the Pleadings to Dismiss Claims of Negligence Per Se in case 1:18-md-02824-WJ; (471) Motion for Judgment on the Pleadings to Dismiss Claims of Negligence Per Se in case 1:17-cv-00710-WJ-SCY; ; granting in part and denying in part (426) Motion for Judgment on the Pleadings to Dismiss Claims of Negligence Per Se in case 1:18-cv-00744-WJ-KK Associated Cases: 1:18-md-02824-WJ, 1:17-cv-00710-WJ-SCY, 1:18-cv-00744-WJ-KK (bap)
Case 1:17-cv-00710-WJ-SCY Document 620 Filed 09/08/22 Page 1 of 9
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
IN RE: GOLD KING MINE RELEASE
IN SAN JUAN COUNTY, COLORADO,
ON AUGUST 5, 2015
This Document Relates to:
No. 1:18-md-02824-WJ
No. 17-cv-710-WJ-SCY
No. 18-cv-744-WJ-KK
MEMORANDUM OPINION AND ORDER
GRANTING IN PART WESTON SOLUTIONS, INC.'S MOTION FOR JUDGMENT ON
THE PLEADINGS TO DISMISS CLAIMS OF NEGLIGENCE PER SE
Weston Solutions, Inc. "moves for judgment on the pleadings to dismiss all claims of
negligence per se stated against it." Weston Solutions, Inc.'s Motion for Judgment on the Pleadings
to Dismiss Claims of Negligence Per Se at 3, Doc. 1480, filed March 7, 2022. Weston states "the
regulations that Plaintiffs rely upon to support their negligence per se claims involve (1) the
Occupational Safety and Health Act ("OSHA"), (2) the Federal Mine Safety and Health Act
("MSHA"), (3) the Colorado Water Quality Control Act, (4) the New Mexico Hazardous Waste
Act, (5) the Clean Water Act, and (6) the National Contingency Plan." Motion at 3.
Judgment on the Pleadings
"After the pleadings are closed—but early enough not to delay trial—a party may move
for judgment on the pleadings." Fed. R. Civ. P. 12(c).
“A motion for judgment on the pleadings under Rule 12(c) is treated as a motion to
dismiss under Rule 12(b)(6).” Atl. Richfield Co. v. Farm Credit Bank of Wichita,
226 F.3d 1138, 1160 (10th Cir. 2000); accord Jacobsen v. Deseret Book Co., 287
F.3d 936, 941 n.2 (10th Cir. 2002).
....
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Emps.' Ret.
Sys. of R.I. v. Williams Cos., Inc., 889 F.3d 1153, 1161 (10th Cir. 2018) (quoting
Iqbal, 556 U.S. at 678, 129 S.Ct. 1937). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Free Speech v.
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Fed. Election Comm'n, 720 F.3d 788, 792 (10th Cir. 2013) (quoting Iqbal, 556 U.S.
at 678, 129 S.Ct. 1937). In making this assessment, we “accept as true ‘all wellpleaded factual allegations in a complaint and view these allegations in the light
most favorable to the plaintiff.’ ” Schrock v. Wyeth, Inc., 727 F.3d 1273, 1280 (10th
Cir. 2013) (quoting Kerber v. Qwest Grp. Life Ins. Plan, 647 F.3d 950, 959 (10th
Cir. 2011)).
Cummings v. Dean, 913 F.3d 1227, 1238 (10th Cir. 2019).
Negligence per se
A recent opinion from the Colorado Court of Appeals discusses negligence per se under
Colorado law:
“[N]egligence per se provides that certain legislative enactments such as statutes
and ordinances can prescribe the standard of conduct of a reasonable person such
that a violation of the legislative enactment constitutes negligence.” Lombard v.
Colo. Outdoor Educ. Ctr., Inc., 187 P.3d 565, 573 (Colo. 2008). It occurs “when
the defendant violates a statute adopted for the public's safety and the violation
proximately causes the plaintiff's injury.” Scott v. Matlack, Inc., 39 P.3d 1160, 1166
(Colo. 2002). “To recover, the plaintiff must also demonstrate that the statute was
intended to protect against the type of injury she suffered and that she is a member
of the group of persons the statute was intended to protect.” Id.
....
To determine whether these state and federal regulations listed in [Jury] Instruction
32 may form the basis for a claim of negligence per se, we must consider whether
they were (1) “enacted for the public's safety,” (2) “intended to protect the class of
persons of which the plaintiff is a member,” and (3) “enacted to prevent the type of
harm suffered by the plaintiff.” Gerrity Oil & Gas Corp. v. Magness, 946 P.2d 913,
930 (Colo. 1997).
....
[The regulations] comprehensively outline various conditions of ASC [Ambulatory
Surgical Center] licensure, ranging from, among other things, administration to
recordkeeping to sanitation. Ensuring patient safety is an important benefit of the
rules, but it is not their raison d’être. See Lawson v. Stow, 2014 COA 26, ¶ 44, 327
P.3d 340 (holding that Colorado's false reporting statute could not form the basis
of a negligence per se claim because, while it “relates to public safety to some
extent,” its “primary purpose ... is to conserve finite law enforcement resources”)
(emphasis added); see also Burgess v. Religious Tech. Ctr., Inc., 600 F. App'x 657,
666 (11th Cir. 2015) (rejecting negligence per se claim based on rehabilitation
facility's “failure to comply with state licensing regulations” because the
“regulations were ‘intended for licensing and inspection purposes and not for the
creation of a standard of conduct to protect individuals’ ”) (citation omitted).
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Rather, CDPHE [Colorado Department of Public Health and Environment] adopted
the regulations pursuant to its authority to “annually license and to establish and
enforce standards for the operation of ... ambulatory surgery centers,” § 25-1.5103(1)(a)(I)(A). While the rules state that an ASC's “governing body shall provide
facilities, personnel, and services necessary for the welfare and safety of patients,”
Dep't of Pub. Health & Env't Ch. 20, Reg. 4.1, 6 Code Colo. Regs. 1011-1, those
requirements represent a condition of licensure rather than the agency's core
regulatory focus. The regulations therefore cannot serve as the basis for a
negligence per se claim.
....
[Other] regulations clearly explain what they are intended to accomplish — the
establishment of requirements for an ASC to receive Medicare reimbursement from
the federal government. As is true for the rules promulgated by CDPHE, scattered
references to factors that may bear on patient safety — like requiring facilities to
maintain a “safe environment,” 42 C.F.R. § 416.41 (2019), and to operate on
patients “in a safe manner,” 42 C.F.R. § 416.42 (2019) — do not change the
fundamental character and purpose of the regulations as a whole. We therefore
conclude that the federal regulations in Instruction 32 could not serve as the basis
for a negligence per se claim against SCLT.
Smith v. Surgery Center at Lone Tree, LLC, 484 P.3d 745, 755-57 (Colo. App. 2020); see also
Dunlap v. Colorado Springs Cablevision, Inc., 799 P.2d 416, 417-18 (Colo. App. 1990) ("If the
exclusive purpose of a legislative enactment is to secure rights or privileges to the public at large,
not citizens in their individual capacity, no basis exists for a claim of negligence per se") (citing
Restatement (Second) of Torts § 288 (1965)) (rev'd on other grounds, 829 P.2d 1286 (Colo. 1992));
Colo. Jury Instr. - Civ. 9:14, Use Note 4 (The Colorado Jury Instruction for negligence per se—
violation of statute or ordinance "does not apply when the ordinance or statute is construed as only
imposing an obligation for the benefit of the public at large, rather than for individuals, as members
of the public"); Colo. R. Civ. P. 51.1 ("In instructing the jury in a civil case, the court shall use
such instructions as are contained in Colorado Jury Instruction (CJI) as are applicable to the
evidence and the prevailing law").
To form a basis for a negligence per se claim, a statute or regulation must also indicate an
intent to create civil liability:
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Not every statute or ordinance will be held to establish a duty and a standard of care
under the negligence per se doctrine. For example, we declined to hold that a statute
requiring the industrial commission to inspect workplaces created a legally
cognizable duty to employees. Quintano v. Industrial Comm'n, 178 Colo. 131, 495
P.2d 1137 (1972). Although we acknowledged that the statute specifically
designated employees and guests as the intended beneficiaries, we decided that it
implicated an area in which we would not create a damages remedy unless the
legislature's expression of its intent to create civil liability was “loud and clear, i.e.,
by authorizing the remedy.” Quintano, 178 Colo. at 135–136, 495 P.2d at 1139.
Bittle v. Brunetti, 750 P.2d 49, 57-59 (Colo. 1988) (en banc) ("Because the ordinance in question
did not expressly provide for imposition of civil liability on violators, it did not create a duty to
pedestrians and we will not use it as the basis for negligence per se"); accord Foster v. Redd,
128 P.3d 316, 318-319 (Colo. App. 2005) ("Moreover, '[i]t is a well-settled general rule that a
landowner will not be liable to a pedestrian injured by a defect in a public sidewalk abutting the
landowner's premises ... unless a statute or ordinance placed the obligation to maintain the sidewalk
upon the landowner and expressly made the landowner liable for injuries occasioned by the failure
to perform that duty'" ... "Thus, as recognized in Bittle v. Brunetti, supra, 750 P.2d at 59, 'imposing
liability would do violence to people's reasonable expectations'”).
The Navajo Nation and the State of New Mexico
Weston states: "The Navajo Nation and State of New Mexico ("Sovereign Plaintiffs") do
not explicitly make a claim for negligence per se, but their pleadings strongly implicate the theory
... to the extent that Sovereign Plaintiffs contend a violation of OSHA regulations conclusively
establish a claim for negligence, these are claims sounding in negligence per se and must be
dismissed for the same reasons set forth below." Motion at 4 n.1; see also Weston's Reply at 14,
Doc. 1567, filed April 18, 2022 (Weston requests dismissal of, "to the extent they have been
asserted, the negligence per se claims of the State of New Mexico and the Navajo Nation").
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The Navajo Nation and the State of New Mexico state: "Both New Mexico and the Navajo
Nation pled causes of action for negligence and gross negligence—not negligence per se ... and
therefore are not subject to Weston's Motion." Navajo Nation and New Mexico Response at 3-4,
Doc. 1542, filed April 4, 2022.
The Court denies Weston's Motion to dismiss the negligence per se claims of the Navajo
Nation and the State of New Mexico as moot because the Navajo Nation and the State of New
Mexico are not asserting negligence per se claims.
Negligence per se Claims based on OSHA, MSHA and the NCP
"Plaintiffs concede that OSHA, MSHA, and the NCP are inapplicable as to their negligence
per se claims." Allen Plaintiffs' Response at 6, Doc. 1537, filed April 4, 2022; see also McDaniel
Plaintiffs' Notice of Joinder, Doc. 1544, filed April 4, 2022. The Court dismisses the Allen and
McDaniel Plaintiffs' claims of negligence per se based on the Occupational Safety and Health Act,
the Federal Mine Safety and Health Act, and the National Contingency Plan.
Negligence per se Claims based on CWQCA, NMHWA and the CWA
The Court dismisses the Allen and McDaniel Plaintiffs' claims of negligence per se based
on the Colorado Water Quality Control Act ("CWQCA"), the New Mexico Hazardous Waste Act
("NMHWA"), and the federal Clean Water Act ("CWA"). While the CWQCA, NMHWA and
CWA relate to public safety to some extent, their primary purposes are to protect the quality of the
water and the environment. The CWQCA, NMHWA and CWA impose an obligation for the
benefit of the public at large, rather than for individuals. The CWQCA, NMHWA and CWA do
not expressly provide for imposition of civil liability on violators and do not indicate an intent to
create civil liability. Consequently, under Colorado law the CWQCA, NMHWA and CWA cannot
serve as the basis for negligence per se claims.
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The Allen and McDaniel Plaintiffs base their negligence per se claims on two regulations
of the Colorado Water Quality Control Commission which was created by the Colorado Water
Quality Control Act. See Allen Plaintiffs' Second Amended Complaint at 112-116, Doc. 445, filed
January 21, 2020; McDaniel Plaintiffs' Second Amended Complaint at 13-16, Doc. 6, filed
September 26, 2017, in McDaniel v. United States, No. 1:17-cv-00710-WJ-SCY; Colo. Rev. Stat.
Ann. § 25-8-201. "The CWQCA is a comprehensive statute designed to protect the quality of
waters throughout the state by, among other things, regulating the discharge of pollutants into such
waters." Roosevelt Tunnel, LLC v. Norton, 89 P.3d 427, 428 (Colo. App. 2003). The Colorado
Water Quality Act states:
The factual or legal basis for proceedings or other actions that result from a
violation of any control regulation inure solely to, and shall be for the benefit of the
people of, the state generally, and it is not intended by this article, in any way, to
create new private rights or to enlarge existing private rights. A determination that
water pollution exists or that any standard has been disregarded or violated, whether
or not a proceeding or action may be brought by the state, shall not create any
presumption of law or finding of fact which shall inure to or be for the benefit of
any person other than the state.
Colo. Rev. Stat. Ann. § 25-8-611(1). This provision does not "create a private cause of action"
and recognizes that "water violation determinations may not be used to benefit anyone other than
the state."
Baseline Farms Two, LLP v. Hennings, 26 P.3d 1209, 1213 (Colo. App. 2001). The
Court dismisses the Allen and McDaniel Plaintiffs' negligence per se claims based on two
regulations issued pursuant to the Colorado Water Quality Control Act, because the primary
purpose of the CWQCA is to protect the quality of waters in the State of Colorado and does not
create a private cause of action.
The Allen and McDaniel Plaintiffs also base their negligence per se claims on New
Mexico's Hazardous Waste Act. "The purpose of the [New Mexico] Hazardous Waste Act is to
help ensure the maintenance of the quality of the state's environment; to confer optimum health,
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safety, comfort and economic and social well-being on its inhabitants; and to protect the proper
utilization of its lands." N.M. Stat. Ann. § 74-4-2. The enforcement provision of the New Mexico
Hazardous Waste Act does not provide for private causes of action. See N.M. Stat. Ann. § 74-410. The Court dismisses the Allen and McDaniel Plaintiffs' negligence per se claims based on the
New Mexico Hazardous Waste Act, because the NMHWA imposes an obligation for the benefit
of the public at large, rather than for individuals, and does not create a private cause of action.
The Allen and McDaniel Plaintiffs also base their negligence per se claims on the federal
Clean Water Act which states: "The objective of this chapter is to restore and maintain the
chemical, physical, and biological integrity of the Nation's waters." 33 U.S.C. § 1251(a). The
CWA provides that:
any citizen may commence a civil action on his own behalf—
(1) against any person ... who is alleged to be in violation of (A) an effluent standard
or limitation under this chapter or (B) an order issued by the Administrator or a
State with respect to such a standard or limitation, or
(2) against the Administrator where there is alleged a failure of the Administrator
to perform any act or duty under this chapter which is not discretionary with the
Administrator.
The district courts shall have jurisdiction ... to enforce such an effluent standard or
limitation, or such an order, or to order the Administrator to perform such act or
duty, as the case may be, and to apply any appropriate civil penalties under section
1319(d) of this title.
33 U.S.C. § 1365(a). The “primary function of the provision for citizen suits is to enable private
parties to assist in enforcement efforts where Federal and State authorities appear unwilling to act.”
Lockett v. E.P.A., 319 F.3d 678, 684 (5th Cir. 2003).
Section 1365 is the Clean Water Act's citizen suit provision and is the sole avenue
of relief for private litigants seeking to enforce certain enumerated portions of the
statute. See 33 U.S.C. § 1365 (1994). Section 1365 permits private citizens to
enforce specified provisions of the CWA by conferring upon them the right to sue
parties alleged to be in violation of “(A) an effluent standard or limitation” or “(B)
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an order issued by the Administrator or a State with respect to such a standard or
limitation.” 33 U.S.C. § 1365(a); see also id. at § 1365(f) (defining “effluent
standard or limitation” as used in subsection (a)).
....
the Supreme Court's decision in Sea Clammers, and this court's decision in Walls
v. Waste Resource Corp., 761 F.2d 311 (6th Cir.1985), preclude us from implying
a private right of action under any provision of the Clean Water Act other than
§ 1365, including the provisions cited in plaintiffs' complaint. See Sea Clammers,
453 U.S. at 14–15, 101 S.Ct. 2615 (federal courts may not imply a private right of
action under any provision of the Clean Water Act not expressly referenced in the
statute's citizen suit provision, 33 U.S.C. § 1365); Walls, 761 F.2d at 314 (refusing,
in light of Sea Clammers, to imply a private right of action under sections of the
Clean Water Act not within the purview of § 1365).
Bd. of Trustees of Painesville Tp. v. City of Painesville, Ohio, 200 F.3d 396, 399 (6th Cir. 1999).
The Court dismisses the Allen and McDaniel Plaintiffs' negligence per se claims based on the
CWA because the primary purpose of the CWA is to restore and maintain the chemical, physical,
and biological integrity of the Nation's waters, the CWA does not create a private cause of action
and this Court cannot imply a private right of action.
NNEPA, NNCWA and NMWQA
The Allen Plaintiffs assert that "as it applies only to the NNWCA, this Court should
consider matters outside the pleadings showing that NNCWA [Navajo Nation Clean Water Act],
N[N]EPA [Navajo Nation Environmental Protection Act], and NMWQA [New Mexico Water
Quality Act] water quality standards were violated and can support Plaintiffs' negligence per se
claim." Response at 20. The Court declines to consider matters outside the pleadings because the
Allen and McDaniel Plaintiffs did not plead negligence per se claims based on the NNCWA,
NNEPA or NMWQA and discovery is closed. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
555 (2007) (A complaint must "give the defendant fair notice of what the . . . claim is and the
grounds upon which it rests").
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IT IS ORDERED that Weston Solutions, Inc.'s Motion for Judgment on the Pleadings to
Dismiss Claims of Negligence Per Se, Doc. 1480, filed March 7, 2022, is GRANTED in part as
follows:
(i)
The Court grants Weston's Motion to dismiss the negligence per se claims of the
Allen and McDaniel Plaintiffs.
(ii)
The Court denies Weston's Motion to dismiss the negligence per se claims of the
Navajo Nation and the State of New Mexico as moot.
________________________________________
WILLIAM P. JOHNSON
CHIEF UNITED STATES DISTRICT JUDGE
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