Free Reply to Response to Motion - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-2355-RPM LEONID DMITRUK, Administrator of the Estate of Alexander Bugaychuk, deceased, and YELENA BUGAYCHUK, an individual, and NATALIA MELNIK, an individual, and IRINA MOROZOV, personally and as administrator of the Estate of Yevgeniy Morozov, deceased, and as Guardian for SARA MOROZOV, a minor, and ELEANNA MOROZOV, a minor, Plaintiffs, v. GEORGE AND SONS' REPAIR SHOP, INC., a Colorado corporation, d.b.a. "George's Towing", GEORGE ROSLER, a resident of the State of Colorado, and JORGE LUIS LAGE, a resident of the State of Florida, and ANGEL EXPRESS, INC., a Florida corporation, Defendants. ______________________________________________________________________________ PLAINTIFFS' REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT RE: NEGLIGENCE PER SE ______________________________________________________________________________

I. INTRODUCTION The Response of George and Sons Repair Shop, and George Rosler (collectively, "Rosler") is based upon irrelevant facts and erroneous argument. It sets forth no material issues of fact which would defeat plaintiffs' Motion. Further, the authorities cited in Rosler's Response do not support his arguments. A reasonable jury could only find that Rosler violated state and federal highway safety laws. He has set forth no rational explanation which might excuse his statutory violations. His conduct was reckless and unreasonable as a matter of law, particularly for a tow truck driver with many years of experience. The Court should enter an order granting partial summary judgment against Rosler on Plaintiffs' negligence per se claims, preserving the issue of damages for trial herein.

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II. UNDISPUTED FACTS Rosler responded to a Colorado State Patrol dispatch call, requesting assistance for an Angel Express tractor trailer combination which was stuck at the bottom of a hill on Interstate Highway 70 near Limon, Colorado. Def.'s Resp. p. 4. After towing the Angel Express rig, Rosler and the driver, Jorge Lage, agreed to drive together to the next exit to arrange for payment of the tow bill. Def.'s Resp. p. 4. The parties agree that the Angel Express rig was stuck at the bottom of a knoll or small hill, and the next exit was near the top of the knoll; however, Rosler has never measured the distance between the location of his tow truck and the top of the knoll, and no longer concedes that his truck was within 500 feet of the top of the knoll. Def.'s Resp. at p. 6. When the two trucks neared the exit, Rosler stopped within the I-70 right of way, 351 feet before the exit. Def.'s Resp. P. 5. The Angel Express truck stopped approximately 10 feet behind Rosler's tow truck. Def.'s Resp. P. 5. A rental van driven by Yevgeniy Morozov struck the rear of the Angel Express truck, killing both Morozov and his passenger, Bugaychuk. Def.'s Resp. P. 6. On October 17, 2002, approximately 11 months after the collision but prior to the commencement of this action, Rosler admitted to insurance investigator Steve Armstrong that he had been stopped approximately 5 to 10 minutes prior to the collision.1 During his deposition in this action, however, Rosler contradicted his prior statements, claiming that he was only stopped for five minutes prior to the collision. Def.'s Resp. P. 6. I-70 is a four-lane divided highway, with two lanes of travel in each direction. At the point where Rosler stopped his tow truck, there is also a third, exit-only lane for traffic exiting

1 See true copy of letter of Andrew C. Gauen, attorney for Angel Express, to Komron Allahyari dated June 9, 2004; letter of Steve Armstrong to North American Risk Services dated October 21, 2002; summary of Steve Armstrong interview with George Rosler dated October 17, 2002, attached as Exhibit 1. Rosler's statements contained within the report constitute admissions within a business record. See FRE 803 (6); 807.

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Interstate 70 at Exit 348. In the written statement he provided to the Colorado State Patrol, Rosler initially wrote that the vehicles were stopped "in the turning [lane]." After writing these words, Rosler crossed them out and replaced them with the phrase "as far to the right as we could go at the Exit of 348. Waiting to take care of a bill." However, the Accident Report indicates that, according to CSP measurements, Rosler parked 351 feet before the Exit 348 off-ramp.2 Rosler has provided no evidence which proves or even suggests that it would have been impossible or more dangerous to pull off of I-70 at Exit 348, or at least on to the shoulder of the highway, prior to stopping. Although Rosler claims that he had "no idea" where Lage would park when the two vehicles stopped to settle the tow bill, Rosler "would have called the state patrol" to arrest Lage for theft of services if he had continued down I-70 without stopping at Exit 348 per their agreement.3

III. A.

ARGUMENT

Rosler and Lage were engaged in a joint enterprise, and each is jointly and severally liable for the negligence of either during the course of the enterprise. There is no merit to the argument that Rosler is liable for plaintiffs' damages only if he

"either required or forced the Angel Express driver to park behind the George and Sons' towing vehicle." Def's Resp. p. 8. The Court must reject the argument that Lage alone is liable for the failure to move completely off of I-70 and deploy emergency warning triangles. Under the facts of this case, the existence of a duty of care is not dependent solely upon the fact that Lage parked

2

See true copy of Colorado State Patrol Accident Report, attached as Exhibit 2. See Deposition Transcript of George Rosler, Plaintiffs' Motion For Partial Summary Judgment Ex. 2., at

3

p. 44:5-17.

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behind Rosler and not in front of him. According to Rosler, he unhooked his tow truck from the Angel Express rig. He then made an agreement with Lage to drive in tandem to the next exit, which was located approximately one mile to the east. Rosler's tow truck was in front of the Angel Express rig, so naturally he led the way. It strains credulity to suggest that Lage, a Floridian interstate semi-truck driver, would park in front of his tow truck driver after he had already been stuck and delayed near the bottom of the knoll. The fact, if true, that Rosler did not "require" or "force" Lage to park behind his tow truck is irrelevant, as the two men had agreed to the joint undertaking. Under Colorado law, Rosler and Lage engaged in a joint enterprise when they agreed to proceed together to the next exit in order to settle the tow bill. A joint enterprise is a partnership formed for a limited purpose; the acts of one are binding upon the other participants, provided those acts pertain to matters within the scope of the joint enterprise. See Bebo Construction Co. v. Mattox & O'Brien, 998 P.2d 475, 477 (Colo. App. 2000). A joint enterprise is formed where the participants are engaged in the joint prosecution of a common purpose, each having authority to act for all, and each controlling the movements of the undertaking to some degree. Mayer v. Sampson, 402 P.2d 185, 188 (Colo. 1965). Each participant in a joint enterprise is liable for the negligence of the others. Id. In the present case, Rosler admits that he and Lage agreed to proceed in a convoy to the next exit of I-70 to settle the tow bill. Def.'s Resp. at p. 5. The common purpose of the enterprise was to settle the tow bill at the top of the hill. Both Rosler and Lage had authority to act within the scope of the enterprise. Rosler admits he did not know where Lage would park, only that they had agreed upon the destination. Lage's discretion was not absolute, however: he could park behind Rosler or in front of him, but could not continue driving, as Rosler admits he

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would have called the state patrol to stop and arrest Lage for theft of services. Similarly, if Lage had not followed Rosler up the hill immediately, Rosler would have been forced to either wait indefinitely for Lage to follow, or proceed back to Lage's location to complete the enterprise. Thus, each partner controlled the movements of the convoy to some degree. In his initial written statement to the Colorado State Patrol, Rosler wrote that he parked "in the turning lane." Ex. 2. Rosler then crossed these words out and replaced them with "as far to the right as we could go at the Exit of 348. Waiting to take care of a bill." Ex. 2. However, the Accident Report shows that Rosler parked 351 feet before Exit 348, actually in the turning lane to exit the highway. Also, in an interview prior to the commencement of this action, Rosler admitted to Angel Express' investigator that he had been parked for between 5 and 10 minutes prior to the collision. Ex. 1. The undisputed facts establish that Rosler formed a joint enterprise with Lage when he suggested that the two vehicles form a convoy and proceed to the next exit. Rosler has submitted no evidence from Lage or Lage's passenger which would contradict the existence of a joint enterprise. Because Rosler and Lage were engaged in a joint enterprise at the time the collision occurred, Rosler is jointly and severally liable for the negligent failure of either or both participants to remove their vehicles from the traveling lanes of I-70. Similarly, Rosler is jointly and severally liable for any failure to deploy emergency warning triangles as required by law. Because Rosler's liability is direct, plaintiffs are not required to establish vicarious liability. Rosler's control over Lage, or lack thereof, has no bearing on the issues raised in plaintiffs' Motion For Partial Summary Judgment.

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B.

Rosler's liability is not dependent upon a showing that a duty of care arose from a special relationship between Rosler and Lage or Rosler and Morozov. Rosler erroneously claims that he cannot be held liable for plaintiffs' damages, as no

"special relationship" between the parties required him to prevent Lage from negligently failing to deploy emergency warning triangles. However, the Court need not and should not reach the issue of whether any special relationship exists in this case. Rosler's liability is individual, joint, and several. As a result, plaintiffs are not required to prove the existence of a special relationship, negligent supervision, or other indicia of vicarious liability. As set forth supra at p. 3-5, Rosler and Lage entered into a joint enterprise when they formed their convoy. Therefore, Rosler is liable for any negligence which occurred while the joint enterprise was in existence. It is undisputed that the enterprise had not concluded at the time of the collision. Accordingly, the Court should reject Rosler's assertion that proof of a special relationship is required to establish liability. It is irrelevant to the issues presented by plaintiffs' Motion For Partial Summary Judgment, which requires proof only that either Rosler or Lage 1) parked within the I-70 right of way without cause or excuse; 2) failed to deploy warning triangles as required by law behind either of their vehicles. These facts are admitted. The authorities cited by Rosler do not require a different result. In University of Denver v. Whitlock, 744 P.2d 54 (Colo. 1987), the court held that a university did not have a duty "to take reasonable measures to protect [a fraternity member] against injuries resulting from his use of a trampoline under unsafe conditions when the trampoline was owned by the fraternity and was located on the front lawn of the house that the fraternity leased from the university." Id. at 54. In Perreira v. State, 768 P.2d 1198 (Colo. 1989), the court held that held that "when . . . a staff psychiatrist of a state mental health facility is considering whether to release an involuntarily committed mental patient. . .the psychiatrist may be required to take reasonable Page -6-

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precautions to protect the public." Id. At 1201. In Smit v. Anderson, 72 P.3d 369 (Colo. App. 2002), the court held that a general contractor who did not agree to build a structure nevertheless had a duty to take reasonable measures to protect persons against injuries sustained during construction. In Lewis v. Emil Clayton Plumbing Co., 25 P.3d 1254 (Colo. App. 2000), the court held that a plumbing company had no duty to inspect or remedy against dangerous conditions which were not part of the particular appliance it was hired to repair. In Bath Excavating & Const. Co. v. Wills, 847 P.2d 1141 (Colo. 1993), the court held that the "fireman's rule" did not excuse an excavation company's legal duty to take reasonable measures to protect a city water department worker from foreseeable injury. In Davenport v. Community Corrections of Pikes Peak Region, Inc., the court held that a private community corrections facility has no duty to take reasonable measures to protect an individual from the conduct of an offender sentenced to the facility. In Mikilian v. City of Los Angeles, 79 Cal.App.3d 150 (1978), the court held that the Los Angeles Police Department had no duty to place flares or warning devices behind the plaintiff's tow truck, where he parked in a limited-visibility location for his own convenience, without being directed to do so by the investigating officers. The common thread in these decisions is that a legal duty to exercise reasonable care exists where harm is foreseeable and the actor is in a position of knowledge requiring him to take reasonable steps to safeguard the unwary against the harm. It follows that a university is not required to safeguard the health of a fraternity brother who knowingly uses an unsafe trampoline. A plumber is not required to safeguard against the possibility that a gas stove will explode simply because he installs the water heater. The police are not required to place emergency warning flares behind a tow truck driver when they did not instruct him to park in a limited-visibility location and therefore were not aware of the risk. A halfway house is not required to take

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reasonable steps to protect against injuries caused by an intoxicated burglar in its custody. These plaintiffs did not sustain foreseeable injuries. More importantly, no statute or precedent defined a standard of care which was breached by the defendants in those cases. Conversely, a general contractor knows that erecting buildings is a dangerous activity, and has a duty to protect all participants against foreseeable harm. Smit, supra. A government psychiatrist knows that his patients may be dangerous, and has a duty to protect against foreseeable harm upon their release. Perriera, supra. An excavator knows that a cave-in may occur, and has a duty to protect against foreseeable harm from falling soil. Bath, supra. Similarly, Rosler, an experienced tow truck driver, knows that the icy conditions on the highway after a snowfall are inherently dangerous, particularly to those unwary interstate motorists who might be unfamiliar with road conditions around Limon, Colorado. Rosler's Response cites these cases for the proposition that no duty of care exists in the instant case. However, the critical issue in these cases was that no duty of care had been previously established by statute or in the common law. They were fringe cases, decided under their particular facts. By contrast, in the present case, Rosler's duty of care is mandated by clear and express statutory and regulatory mandates. The cases cited by Rosler are thus fundamentally distinguishable. Rosler was fully aware both of his legal obligations, and of the risk of serious bodily injury and death created by his failure to conduct himself according to these clear mandates. Rosler expects this court to find that his conduct was justified by convenience alone. Based upon the foregoing, there is no need for the Court to engaged in a labored duty analysis in this case. A reasonable jury could only find that Rosler failed to abide by established, well-known safety mandates enacted for the protection of the driving public. Rosler owed

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Morozov and Bugaychuk a statutory duty of care, as a matter of law. C. Rosler's duty of care was proscribed by highway safety laws. A party to an automobile collision "is entitled to have his conduct judged in the light of the surrounding circumstances and conditions." Brice v. Miller, 218 P.2d 746, 752 (Colo. 1950). "[I]f it appears, when so judged, to be that of a reasonably prudent person, he cannot be said to be guilty of negligence. One must use care proportioned to the probable danger." Id. (citations omitted). CRS 42-4-1204 provides in pertinent part: (1) Except as otherwise provided in subsection (4) of this section, no person shall stop, stand, or park a vehicle, except when necessary to avoid conflict with other traffic or in compliance with the directions of a police officer or an official traffic control device, in any of the following places: * * * * (i) On any controlled-access highway; * * * * (7) Any person who violates any provision of this section commits a class B traffic infraction. Id. CRS 42-4-230 provides, when stopped on the highway or shoulder, that "the driver shall, as soon as possible, but in any event within ten minutes, place the bidirectional emergency reflective triangles. . . ." (emphasis added). These statutes establish the standard of conduct of a reasonable person, where the plaintiffs are members of the class the statute was intended to protect, the injuries suffered were of the kind the statute was enacted to prevent, and the statutes proscribe or prescribe specific conduct. Hageman v. TSI, Inc., 786 P.2d 452, 454 (Colo. App. 1989). Under the undisputed facts, these statutes established a standard of conduct for Rosler to obey. The decedents Morozov and Bugaychuk were proceeding in a vehicle upon a traveled portion of I-70 when they collided with the Angel Express vehicle which was parked in the exit

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lane. Sometime prior, Rosler agreed with Lage to drive in tandem to the next exit, where the bill would be settled. Inexplicably, Rosler deviated from his own instructions, and instead stopped within the traveling lanes of I-70, just over 300 feet before the next lawful exit. Lage would not have stopped in that location had Rosler not done so. Rosler knew, or in the exercise of reasonable care should have known, that he could not legally stop at that location. He further knew, or in the exercise of reasonable care should have known, that he was obligated to immediately deploy emergency warning triangles. Instead of placing the required triangles behind his own vehicle, or ensuring there were triangles being placed behind the Angel Express rig, Rosler admits he sat in his own vehicle watching Lage talk on his cell phone. Rosler's response sets forth no fact, by declaration or otherwise, which would explain or justify his abject failure to comply with clear and mandatory statutes regulating his conduct. In the absence of any reasonable justification or excuse, a reasonable jury could only find that the elements set forth in Hageman are met in this case, and therefore the statutory provisions cited above establish the standard of conduct of a reasonable person in the present case. There can be no question that Rosler owed statutory duties of reasonable care to plaintiffs' decedents under Colorado law. D. Rosler violated his statutory duty of care without justification or excuse. 1. Rosler is liable as a matter of law for his violation of Colorado highway safety laws.

The "violation of a statute or ordinance adopted for the public's safety may be negligence per se and establish the violator's civil liability for all damages proximately caused thereby." Hageman, 786 P.2d at 453-454. "In Colorado, the doctrine [of negligence per se] has established negligence for violations of, among other provisions, the state liquor code, a city building code, motor vehicle safety statutes, and motor vehicle and pedestrian safety ordinances." Id. (citations Page -10-

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omitted). Rosler is liable as a matter of law for any injuries proximately caused by his failure to park away from the lanes of travel of I-70, and by his failure to deploy emergency warning triangles. 2. Rosler is liable as a matter of law for his violation of federal highway safety regulations which are expressly applicable to his tow truck operation.

Colorado also applies the negligence per se doctrine to violations of federal highway safety regulations applicable to interstate motor carriers and Colorado tow truck operators. 49 CFR § 392.21 prohibits stopping "upon the traveling portion of any highway outside of a business. . .district." 49 CFR § 392.22 provides that "[i]f a motor vehicle is stopped upon the traveled portion of the shoulder of a divided . . . highway, the driver shall place [three] warning devices . . . ." Id. In Hageman, the court held that a violation of these federal regulations constituted negligence per se under Colorado law, and the failure to instruct the jury on negligence per se constituted reversible error. Id. at 454-455. Rosler argues that these federal regulations do not apply to his tow truck, as it is not "being used in interstate commerce." Def.'s Resp. P. 17. Rosler's argument ignores the fact that the State of Colorado Department of Public Safety has expressly adopted "49 CFR Parts § 390, 391, 392, 393, 395, and 396 . . . into state law."4 Further, the regulations contain no exemption from coverage applicable to Rosler. The regulations are applicable to all commercial motor vehicles within the State of Colorado, including Rosler's tow truck. 49 C.F.R. § 390.3(a) provides: The rules in subchapter B of this chapter are applicable to all employers, employees, and commercial motor vehicles, which transport property or passengers in interstate commerce.
4

See Colorado State Patrol Motor Carrier Safety Section, Wreckers, Towing Vehicles and The Motor Carrier Safety Regulations, An Informational Handout Provided As A Public Service By: Colorado State Patrol Motor Carrier Safety Section, at p. 2, attached as Exhibit 3.

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49 C.F.R. § 390.23(a)(3) provides: Tow trucks responding to emergencies. (i) The exemption provided by paragraph (a)(3) of this section is effective only when a request has been made by a Federal, State or local police officer for tow trucks to move wrecked or disabled motor vehicles. (ii) This exemption shall not exceed the length of the motor carrier's or driver's direct assistance in providing emergency relief, or 24 hours from the time of the initial request for assistance by the Federal, State or local police officer, whichever is less. Id. (emphasis added). Although Rosler claims that Part 390 does not apply to tow trucks, Section 390.23 expressly provides otherwise. When a tow truck responds to a request from federal or state authorities to remove a wrecked or disabled vehicle, it is exempt from the chapter's provisions for the shorter of the length of the driver's direct assistance in providing emergency relief, or 24 hours. By his own admission, Rosler ceased providing emergency relief when he unhooked his hitch from the Angel Express rig and agreed with Lage to proceed to the next exit. His testimony is very clear that he exercised no control over Lage after unhooking his hitch, and the Colorado State Patrol officer had left the scene prior to that time. Rosler was not providing emergency relief at the time the collision occurred, and is not exempt from the provisions of 49 C.F.R. Part 390 et seq. In the present case, it is undisputed that Rosler and Lage agreed to proceed in tandem to the next exit to settle the tow bill. It is also undisputed that Rosler did not in fact proceed to the next exit, but instead made an arbitrary, unlawful stop within the traveling lanes of I-70. It is also undisputed that Rosler violated Colorado and federal highway safety regulations when he failed to deploy the emergency warning triangles.

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3.

Rosler's Response fails to raise any material issue of fact with respect to his failure to comply with clear statutory and regulatory mandates.

Rosler makes no effort to defend his decision to stop within the traveling lanes of I-70. He does not claim any emergency or condition excused his conduct. In defense of his failure to deploy emergency warning triangles, Rosler argues that he "was still within the statute's `10 minutes' prescribed period and thus did not violate the statute." This argument misstates the mandatory language of CRS § 42-4-230, which provides that "the driver shall, as soon as possible, but in any event within ten minutes, place the bi-directional emergency reflective triangles. .. ." (emphasis added). The statutory language does not create a safe harbor of 10 minutes in which the mandatory requirement of placing the emergency reflective triangles may be ignored. The statute mandates compliance "as soon as possible." Rosler has admitted that he was parked for five to ten minutes before the collision, watching in his rear view mirror as the Angel Express driver finished a cell phone call. Rosler argues that his failure to place emergency warning triangles could not have been the proximate cause of the collision because Morozov's rental van struck the Angel Express rig, not his tow truck. "[B]ecause Rosler did not tow the Angel Express semi-truck to the location of the accident, any obligation to place the warning signals would have fallen upon the Angel Express driver." Def.'s Resp. at p. 16. As set forth supra at pp. 3-9, this argument is erroneous. Rosler and Lage were engaged in a joint enterprise, and they are jointly and severally liable for any negligent failure to abide by applicable highway safety laws, including CRS § 42-4-230 (emergency warning triangles) and CRS § 42-4-1204 (stopping in roadway). Because they were engaged in a joint enterprise, Rosler cannot claim that Lage's negligence and not his own negligence proximately caused plaintiffs' damages. Rosler is individually and jointly liable to the same extent as Lage for Lage's carelessness. Page -13-

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Rosler further argues that he is not liable under either CRS 42-4-230 or 49 C.F.R. § 392.22 because plaintiffs have failed to adduce evidence that Rosler was parked within 500 feet of a curve, crest, hill, or other obstruction to view. This argument misstates the requirements for deployment of emergency warning triangles. 49 C.F.R. § 392.22 provides in pertinent part: (b) Placement of warning devices ­ (1) general rule. . . . whenever a commercial vehicle is stopped upon the traveled portion or the shoulder of a highway for any cause other than necessary traffic stops, the driver shall, as soon as possible, but in any event within 10 minutes, place the warning devices required by Sec. 393.95 of this subchapter, in the following manner: (i) One on the traffic side of and 4 paces (approximately 3 meters or 10 feet from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction of approaching traffic; (ii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction of approaching traffic; and (iii) One at 40 paces (approximately 30 meters or 100 feet) from the stopped commercial motor vehicle in the center of the traffic lane or shoulder occupied by the commercial motor vehicle and in the direction away from approaching traffic. (2) Special rules ­ * * * * (iv) Hills, curves, and obstructions. If a commercial motor vehicle is stopped within 500 feet of a curve, crest of a hill, or other obstruction to view, the driver shall place the warning signal required by paragraph (b)(1) of this section in the direction of the obstruction to view a distance of 100 feet to 500 feet from the stopped commercial motor vehicle so as to afford ample warning to other users of the highway. (v) Divided or one-way roads. If a commercial motor vehicle is stopped upon the traveled portion or the shoulder of a divided or one-way highway, the driver shall place the warning devices required by paragraph (b)(1) of this section, one warning device at a distance of 200 feet and one warning device a t a distance of 100 feet in a direction toward approaching traffic in the center of the lane or shoulder occupied by the commercial motor vehicle. He/she shall place one warning device at the traffic side of the commercial motor vehicle within 10 feet of the rear of the commercial motor vehicle. Id. The Colorado standard, CRS 42-4-230, is essentially identical. Under § 392.22(b)(1), the general rule is that all commercial motor vehicles stopped on

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the traveled portion or shoulder of any roadway in any condition, regardless of visibility, grade, corner, or other condition, must place at least three emergency warning devices. Under § 392.22(b)(2), the general rule is modified in special circumstances, including subsection (b)(2)(iv), hills, curves, and obstructions, and (b)(2)(v), divided or one-way roads. Rosler's assertion is thus purely argumentative. The fact that the parties dispute whether the special circumstances set forth in subsection (iv) existed at the time of the collision does not alter the fact that Rosler and Lage never made any effort at any time to deploy a single emergency warning device. The general standard requires at least three under any circumstances. Rosler's Response thus fails to raise any material issue of fact. E. Rosler's negligence proximately caused Morozov and Bugaychuk's injuries. In Hageman v. TSI, Inc., 786 P.2d 452, 454 (Colo. App. 1989) the court held that a violation of federal highway safety regulations under 49 C.F.R. Part 390 et seq. constituted negligence per se under Colorado law, and the failure to instruct the jury on negligence per se constituted reversible error. Id. at 454-455. Under the facts presented in this case, which clearly establish a joint enterprise between Rosler and Lage, it makes no difference whatsoever that Morozov collided with the Angel Express rig, and not Rosler's tow truck. Under applicable safety laws, Rosler had an affirmative duty to avoid stopping on the I-70 right-of-way. Once stopped, he also had an affirmative and immediate duty to deploy emergency warning triangles "as soon as possible." The cases cited by Rosler are distinguishable. In Denver - Los Angeles Trucking Co. v. Ward, 164 P.2d 730 (Colo. 1945), the accident occurred in Pecos, New Mexico. Id. at 731. "No statute of the State of New Mexico required the placing of flares, and . . .[the truck driver] did not have time to place any other warning signals or guards." Id. The truck driver lost traction

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and "jackknifed" his truck in the middle of the highway, and the accident occurred while the driver was still in the cab with his foot on the brake pedal waiting for assistance. Id. The plaintiffs' first opportunity to see the stalled truck occurred as they hit a patch of ice that extended to the scene of the accident. Id. Under these facts, characterized as an "unavoidable" accident, the Ward court ruled that the issue of whether the driver's failure to place flares constituted negligence should not have been submitted to the jury. The facts and law are clearly different in the present case, where Rosler has violated a statutory duty. In Widefield Homes v. Grieco, 416 P.2d 365 (Colo. 1966), the 14-year-old plaintiff was riding his bicycle when he saw defendant's iron drainage grate on the roadway in front of him. The next thing he remembered was being taken to the hospital. Id. at 366. The court ruled that this evidence was insufficient for a jury to find that a defect in the grate caused the boy's fall. Id. at 366-367. The existence of a statutory duty was not at issue, nor did the plaintiff assert that the defendant's failure to erect warning devices constituted negligence. There was no evidence that the drainage grate had anything to do with the boy's fall. As the court said, "[i]t is a matter of common knowledge that boys occasionally do fall from bicycles." Widefield has no bearing on the present case. Reasonable minds could only find that, but for Rosler's clear statutory violations, the collision would not have occurred. Colorado recognizes only two defenses to negligence per se: "compliance was impossible or would have created a greater risk of danger or injury." Hageman, supra, at 454. Rosler has made no attempt to adduce any material fact which might support either defense. In the present case, a reasonable jury could only conclude that it was the negligence of Rosler in parking within the lanes of travel of I-70 and failing to deploy emergency warning triangles that proximately caused the death of Morozov and Bugaychuk. It was the cause-in-fact as a matter of

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law, because if Rosler had properly exited the highway, the collision could not have taken place. It is the legal cause, because Rosler violated numerous statutes and regulations enacted for the protection of Morozov and Bugaychuk. The Court should grant partial summary judgment in favor of plaintiffs on the issue of proximate cause. At a minimum, the Court should conclude that plaintiffs have set forth substantive proof that Rosler's negligence was a proximate cause of the collision which killed Morozov and Bugaychuk.

IV. CONCLUSION Rosler's Response to plaintiffs' Motion For Partial Summary Judgment sets forth no material issue of fact supporting any affirmative defense to plaintiffs' negligence per se claims. Rosler's legal arguments lack merit and should be rejected. Plaintiffs respectfully request that this court grant the instant motion. Dated this September 28, 2005. Respectfully submitted, /s___________________________ Komron Michael Allahyari WASHINGTON LAW GROUP 1001 Fourth Avenue Plaza, 32nd Floor Seattle, WA 98154 Telephone: (206) 423-1045 Facsimile: (206) 523-0822 Email: [email protected] ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on September 28, 2005, I electronically filed a true and correct copy of this document with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following email addresses: Andrew Carafelli Hall & Evans, LLC 1125 17th St., Suite 600 Denver, CO 80202-2052 E-mail: [email protected]

/s___________________________ Komron Michael Allahyari WASHINGTON LAW GROUP 1001 Fourth Avenue Plaza, 32nd Floor Seattle, WA 98154 Telephone: (206) 423-1045 Facsimile: (206) 523-0822 Email: [email protected] ATTORNEYS FOR PLAINTIFFS

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