Free Motion to Supplement - District Court of Colorado - Colorado

Case 1:04-cv-01070-PSF-PAC

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Filed 07/07/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04- F - 1070 (PAC) DANNIE W. JOHNSON and MARTHA D. JOHNSON Plaintiffs, v. OVERRIGHT TRUCKING, INC., a New Mexico Corporation, and ROSS A. REED, Defendants. PLAINTIFFS' SUPPLEMENTAL RESPONSE TO MOTION FOR PARTIAL SUMMARY JUDGMENT Pursuant to Fed.R.Civ.P. Rule 56 and having unsuccessfully attempted to resolve the disputed matter re: leave to supplement pursuant to D.C.Colo.LCivR.7.1 (C), Plaintiffs, by and through counsel, for their Supplemental Response to Defendant's Motion for Partial Summary Judgment , state: A. PRESENT POSTURE OF THE CASE Defendants alleged three (3) basis for partial summary judgement, as follows: (a) damages for alleged emotional distress resulting from damage to property are not recoverable under Colorado law; (2) that Plaintiff Dannie Johnson's claimed income losses are not recoverable under Colorado law; and (3) that Plaintiffs have failed to mitigate their claimed damages as a matter of law. Based upon the Defendants' deposition testimony, Plaintiffs hereby supplement their

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prior Response to the Defendants' Motion for Partial Summary Judgment as to the following claims for dismissal: (1) that Plaintiffs' damages for emotional distress resulting from damage to property are not recoverable under Colorado law; and (3) that Plaintiffs have failed to mitigate their claimed damages as a matter of law. The prior Response was filed on April 21, 2005, pending Magistrate Judge Coan's Ruling on the Motion for Protective Order, which was denied. The within supplement is being provided to lend further factual support that was brought forth from Defendants' depositions which were completed on May 18, 2005 as those facts support Plaintiffs claims that emotional distress damages are allowed in this instance and that the Plaintiffs have mitigated their damages. B. SUPPLEMENTAL RESPONSE TO INTRODUCTION AND APPLICABLE LAW Emotional Distress damages: Defendants have, unfortunately, misstated Colorado law. Emotional distress damages are recoverable under Colorado law where Defendants placed the Plaintiffs in an "unreasonable risk of bodily harm" [See Williams v. Continental Air Lines, Inc. 943 P.2d 10 (Colo. App. 1996) and also see Atsepoyi v. Tandy Corp. 51 F. Supp. 2d 1120 (D. Colo. 1999) where the "zone of danger" rule was applied, citing Card v. Blakeslee 937 P.2d 846 (Colo. App. 1996), stating that emotional distress damages are recoverable under Colorado law when the plaintiff is subject to a direct threat of harm or an unreasonable risk of bodily injury. Failure to Mitigate Damages: Defendants disingenuously claim that Plaintiffs have failed to mitigate their damages, but the actual assertion being made is that Defendants disagree with Plaintiff's election of remedies. Defendants provide no statutory or decisional law supporting their assertion that Plaintiffs have a legal duty to recover only part of their damages through a collateral source before seeking a remedy from Defendants. 2

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C. SUPPLEMENTAL FACTS APPLICABLE TO PREVAILING LAW 1. Zone of Danger and Unreasonable Risk of Bodily Harm: In addition to the prior factual support for Plaintiffs' claims for emotional distress on the basis of Plaintiffs being in the "zone of danger" and Defendants' "creation of an unreasonable harm" [ i.e. `creation of unreasonable risk of bodily harm' supports claim for emotional distress damages, see Webster v. Boone 992 P.2d 1183, 1187; and Williams v. Continental Airlines, Inc. 943 P.2d 10 (Colo. App. 1996) Cert. denied 1997.], Michael Overright, on behalf of Overright Trucking, Inc. in his deposition at Page 25, Lines 5-11, while referencing photograph 4S, stated that a gas line was ruptured by the impact of Overright's truck as follows: "5. Q. And 4S? 6. A. A shot of the impact side of the house towards the rear of the house,

7. towards the rear of the house. 8. Q. Okay. 9. A. Showing the gas line that had been - 10. Q. All right. 11. A. Ruptured." and ... ... 18. Q. And each of these photographs are true 19. and accurate depictions of what was shown? 20. A. Yes." and ... ... 3

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Where Mr. Overright stated in pages 27 and 28 of his deposition that he terminated Mr. Reed from employment with Overright as the result of a drug test where Mr. Reed tested positive for amphetamines and methamphetamines shortly after the accident, as follows: Page 27: 19. Q. Would you relate to us the substance of 20. that conversation please? 21. A. It was between Ross, myself, my mom and 22. me dad, and we decided to no longer employ Ross and 23. informed him of that effect. 24. Q. And what was the reason given to Mr. Ross as 25. his termination. Page 28. 1. A. We had received a drug ­ - the 2. post-accident drug test results. 3. Q. What were the results of the 4. post-accident drug test results? 5. A. They were positive for methamphetamines. 6. Q. Amphetamines? 7. A. Amphetamines. 8. Q. Or both? 9. A. I'm not sure. 10. Q. But there was ­ he tested positive for a drug? 4

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11. A. (Witness nods.) ... ... 24. Q. (By Mr. Phillips) Did you accept that 25. explanation or did you terminate him? Page 29. 1. Mr. Hardman: Same objection. 2. THE DEPONENT: We terminated him. 3. Q. (By Mr. Phillips) All right. Did you 4. not find the explanation credible? 5. A. It wouldn't have mattered. 6. Q. Why? 7. A. Given the nature of the results and the 8. severity of the accident, we are required ­ 9. decisions like that aren't based on personal 10. opinion. They're based on test results. See Exhibit A annexed hereto and incorporated herein by this reference, a true and correct copy of the foregoing. Defendant Overright agrees that a gas line was ruptured. Common sense dictates that a ruptured gas line (which in all instances is known to be extremely flammable and is sometimes also explosive) placed the Plaintiffs in a "zone of danger" and also constitutes an "unreasonable risk of bodily harm." Furthermore, with respect to the "unreasonable risk of bodily harm" and "zone of danger issue" see Defendant Reed's deposition where Mr. Reed states: 5

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Page 15: 11. Q. Yes. On the evening of, on New Year's Eve 12. Eve of 2003, what time did you go to sleep that 13. night? 14. A. About 12:30, 1:00 15. Q 12:30, 1:00? 16. A. Yeah. 17. Q. What time did you get up on the morning 18. of January 1, 2004. 19. A. Between 4:00 and 4:30 A.M. 20. Q. Okay. And you went to sleep about what 21. time? 22. A. 12:30-1:00 23. Q. How many hours of sleep did you have that 24. night? 25. A. Three, three and a half hours. Page 16. 1. Q. What time had you gotten up on 2. December 31? 3. A. I don't recall. 4. Q. Do you recall ho many hours sleep you 5. had on the night of December 30th? 6

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6. A. Probably around, between eight and eleven 7. hours. 8. Q. What is your normal amount of hours that 9. you have to sleep a day? 10. A. Eight to ten. 11. Q. Why is that? 12. A. that's normal time that I'm not working, 13. able to sleep and get plenty of sleep if I sleep 14. that long. 15. Q. Do you have any medical condition that 16. would cause you to sleep those kinds of hours? 17. A. No. 18. So you got three, three and a half hours 19. on New Years' Eve? 20. Yes sir. ... ... Page 19. 14. Q. .. . What is the last thing you remember prior to 15. the wreck. 16. A. The last thing I remember? 17. Q. Uh-huh. 18. A. Seeing the road in front of me, driving 7

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19. down the road. 20. Q. Okay. 21. A. Straight down the road. 22. Q. And do you have any recollection of how 23. far down the road from where the truck 24. ultimately came to rest? 25. No sir. Page 20. 1. Q. What that recollection is? 2. A. No, Sir. 3. Q. Were you tired or sleepy? 4. A. No, sir. 5. Q. Then you only had three, three and a half 6. hours of sleep? 7. Q. Okay, Were you ill or anything like that? 8. A. No sir. 9. Q. Okay, were you ill or anything like that? 10. A. No sir. ... ... 18. Q. Did you go to sleep, pass out, what? 19. A. I presume I fell asleep, but I don't 20. know. 8

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... ... Page 60 2. By Mr. Hardman: 3. Q. Sir, you were asked some questions about 4. the positive drug test for methamphetamines and 5. amphetamines. Do you have any understanding or 6. as to why you may have tested positive for 7. Methamphetamines or amphetamines following the 8. accident? 9. A. I have never taken any. I suspect it 10. could be possible that one of my drinks might have 11. been spiked or tampered. 12. Q. Can you tell me why you believe that? 13. A. The girl that I was staying with, 14. I called and asked her and had her ask her friend 15. if anybody had seen anybody messing with one of my 16. drinks, and she said yes, that she had seen an 17. ex-boyfriend around one of my drinks. 18. Q. Aside from that, it's your testimony that 19. you did not ingest any methamphetamines, 20. amphetamines; is that correct? 21. A. Yes. 9

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... ... Page 61 2. By Mr. Phillips 3. Q. So would it be a fair statement, then, 4. that you don't contest the findings in the report, 5. just the manner in which that they may have gotten 6. into your body. Would that be fair? 7. A. Yes. 8. Q. All right. So you don't contest that you 9. tested positive for that substance, just that you 10. offer a different explanation, correct? 11. A. Yes. See Exhibit B annexed hereto. Common sense would dictates, assuming that everything Mr. Reed has stated is true, that driving on 3 ½ hrs. of sleep when Mr. Reed had been used to getting 8+ hours of sleep, even while under the influence of amphetamines or methamphetamines, would places third parties at an unreasonable risk of danger because of the strong likelihood of falling asleep while driving. Please note Exhibit C annexed hereto, showing the truck imbedded into the house, and it will be clear that if Defendant Reed had steered the truck even ten (10) feet to the West, he would have missed the home foundation. 2. Failure to Mitigate Damages: Defendant Overright Trucking, through Michael Overright, pointed out the `ruptured gas line'. [Exhibit A, Page 25, Lines 5-11. This is the same ruptured 10

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gas line that Plaintiff Dannie Johnson stated he had turned off shortly after the incident occurred, See AFFIDAVIT OF DANNIE JOHNSON AND MARTHA JOHNSON, Exhibit F, ¶ 4, annexed to the original Response to Motion for Partial Summary Judgment. Mr. Overright's statement supports Plaintiffs position that Plaintiffs did mitigate their damages by somehow finding a way to turn off the gas. What Plaintiffs did not do is select a remedy that was preferred by Defendants and this is a duty not imposed upon the Plaintiffs by Colorado law. H & K Automotive Supply Co. v. Moore & Company 657 P.2d 986 (Colo. App. 1982) cert denied 1983. Also see Carpenter v. Donohoe 154 Colo. 78, 388 P.2d 399, (Colo. 1964) where the Colorado Supreme Court held, at page 82, that "a party should not be required to elect where the remedies he invokes are consistent with each other. If remedies are consistent with each other, he has one satisfaction. German Natl. Bank of Denver v. J.D. Best Co 32 Colo. 192, 75 P.398; Weddingfeld v. Gregersen 73 Colo. 582, 216 P.1053. D. SUPPLEMENTAL CONCLUSION As shown by the additional facts, Defendants' grounds for filing the Motion for Partial Summary Judgment have been placed in improper applications of law and fact. Even the Defendants' own deposition testimony fails to support the Motion. WHEREFORE, on the basis of the foregoing facts and applicable law, the Motion for Partial Summary Judgment should be denied. Respectfully submitted this day of June, 2005 by:

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MCDANIEL BATY MILLER AGRO WALES & ROBBINS LLC \s\ original signature on file Michael W. Baty, Esq. #14804 (Colo.) 1040 Main Ave. P.O. Box 1157 Durango, CO 81301 (970) 247-1113

PHILLIPS & GRAHAM

\s\ original signature on file Randolph H. Phillips, Esq. #576575 (GA) 609 Pine Ave P.O. Box 2303 Albany, Georgia 31702 (229) 435-4452

CERTIFICATE OF SERVICE The undersigned certifies that a true and correct copy of the foregoing Supplemental Response to Partial Motion for Summary Judgement was electronically filed with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses on the 6th day of July , 2005 and faxed to the following on the 2nd day of July, 2005 and re-filed with the Clerk of the District Court on the 7th day of July, 2005. Mr. Brad Hardman, Esq. Mr. Ted Bills, Esq. Wittman & McCord UMB Bank Building 5825 Delmonico Drive, Suite 320 Colorado Springs, CO 80919

fax: (719/590-9984

s/ original signature on file Michael W. Baty, Esq. Attorney for Plaintiffs McDaniel Baty Miller Agro Wales & Robbins LLC 1040 Main Ave. Durango, CO 81301 (970)247-1113 (970)259-2690 [email protected]

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