Free 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. Defendants. ______________________________________________________________________________ DEFENDANTS GEORGE AND SONS' REPAIR SHOP, INC.'S AND GEORGE ROSLER'S RESPONSE TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT RE: NEGLIGENCE PER SE ______________________________________________________________________________ Defendants George and Sons' Repair Shop, Inc., d.b.a. George's Towing, and George Rosler, by and through their attorney, Andrew J. Carafelli, of Hall & Evans, L.L.C., hereby respond to Plaintiffs' Motion for Partial Summary Judgment re: Negligence Per Se as follows:

INTRODUCTION This case arises from an automobile accident which occurred on November 26, 2001 on Interstate 70 near the town of Limon, Colorado. For some inexplicable reason, at approximately 10:00 a.m. on that morning, the decedent Yevgeniy Morozov who was driving a Budget Rent-A-

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Car System's rental van drove into the back of a semi-truck owned by Angel Express which was partially parked in the exit lane and on the shoulder of Interstate 70. At the time of the accident the weather was clear and there was nothing obstructing Mr. Morozov's view. Earlier that morning the Angel Express semi-truck had become stuck in a snow bank along Interstate 70. The Angel Express driver called the police who in turn called a local towing company, George's Towing, to pull the truck from the snow. After pulling the Angel Express truck free from the snow and detaching, George Rosler of George's Towing suggested that the Angel Express driver and he drive to a nearby exit for the purpose of settling the small tow bill. The driver of the Angel Express truck, Jorge Lage, agreed. Both vehicles then moved under their own power to Exit 348 off Interstate 70. At no time did George Rosler order or otherwise require the Angel Express truck to follow him to the exit. Nor did he provide the Angel Express truck driver with any type of instructions as to where to park near the exit. Rather, the Angel Express driver, on his own, pulled up behind the George's Towing vehicle at the exit ramp. At that time both George and Sons' Towing vehicle and the Angel Express truck had their emergency flashers on. A State Trooper passed the two clearly visible trucks on the side of the road shortly after the trucks had stopped and shortly before the accident. He did not take exception to their positions on the exit ramp. Within minutes after stopping, Mr. Morozov ran into the backend of the Angel Express semi-truck. As a result, Mr. Morozov was killed instantly and his passenger later died in the hospital. In their Amended Complaint, the Plaintiffs have alleged in part that these Defendants' conduct was in violation of C.R.S. § 42-4-230 and constitutes negligence per se. The Plaintiffs have now filed a Motion for Partial Summary Judgment regarding their claim for negligence per se.

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However, Plaintiffs' Motion is replete with misstatements of fact and devoid of legal support. As such, the Plaintiffs' Motion for Summary Judgment Re: Negligence Per Se must be denied.

STATEMENT OF FACTS Because Plaintiffs have not set forth individual facts in separately numbered paragraphs, it is difficult to respond to the long "narrative" of facts that Plaintiffs set forth in their Motion. However, Plaintiffs' "Statement of Facts" is devoid of citation to any depositions or other affidavits in many places. Instead, in most instances Plaintiffs' "Statement of Facts" is little more than the opinions of Plaintiffs' counsel and rife with conjecture, speculation, and hyperbole. Defendants set forth their own undisputed facts with citation to authority and address Plaintiffs' misstatement of facts where necessary. 1. At about 10:00 a.m. on November 26, 2001 Yevgeniy Morozov was driving a

Budget rental truck eastbound near exit ramp 348 on Interstate 70 near Cedarpoint, Colorado. Alexander Bugaychuk was a passenger in this vehicle. See Amended Complaint, ¶ 10. 2. On November 26, 2001 George Rosler ("Rosler") was working as a towtruck See

operator for George and Sons' Repair Shop, Inc. ("George's"), a Colorado corporation. Amended Complaint, ¶¶ 7-8. 3.

On November 26, 2001, Rosler received a call from the State Patrol Office

requesting that he respond to a truck which had a wheel off the pavement on Interstate 70, just past the Cedarpoint exit. Exhibit 2, deposition of George Rosler, p.6, ll.18-25; p.19, ll.2-15. 1
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Pursuant to D.C.Loc.R. 59, Exhibit 2 refers to Exhibit 2 of Plaintiffs' Motion for Summary Judgment. While Plaintiffs attached a small portion of the deposition of Trooper Bandy as Exhibit 1 to their Motion, Defendants cite to additional portions of Trooper Bandy's deposition not included in Plaintiffs' Motion and have denoted such portions as Exhibit D to their Response.

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4.

The truck to which Rosler responded, was owned by Angel Express, Inc., a Florida

corporation, and was being driven by an individual by the name of Jorge Lage. See Amended Complaint, ¶¶ 9-10. When Rosler arrived at the scene of the truck there was a State Patrol Officer on the scene with his vehicle located behind the Angel Express truck with his flashing overhead lights on. Exhibit 2, deposition of George Rosler, p.13, ll.1-25; p.14, ll.1-2. 5. Rosler then spoke to Mr. Lage (who spoke English). Lage asked Rosler if he could

pull him back onto the pavement. Exhibit 2, deposition of George Rosler, p.10, ll.8-25; p.11, ll.1-7. 6. After agreeing to do so, Rosler hooked his cable to the semi-truck, pulled the

wrecker forward, and pulled the semi-truck onto the pavement. At that point in time Rosler unhooked his towtruck from the Angel Express truck. Exhibit 2, deposition of George Rosler, p.11, ll.8-12; p.16, ll.20-22; Exhibit F, Washington State Complaint filed by Plaintiffs, ¶ 23. 7. The State Patrol Officer left the scene before Rosler completed pulling the Angel

Express Truck back onto the pavement. Exhibit 2, deposition of George Rosler, p.15, 11.18-22. 8. Rosler and Mr. Lage then agreed to go to the next exit to take care of the bill for the

towing. The exit was approximately one mile away from the point where Rosler had pulled the truck onto the pavement. Exhibit 2, deposition of George Rosler, p.15, ll.4-12. 9. Rosler was only on the scene approximately five minutes before both trucks moved

under their own power to the next exit, approximately a mile away. Exhibit 2, Id., p.15, ll.23-25; p.16, ll.1-9; Exhibit F, Washington State Complaint filed by Plaintiffs, ¶ 24. 10. On page 3, paragraph 2 of their Motion, Plaintiffs state: "After towing Angel

Express, defendant George Rosler unhooked Angel Express and instructed it to drive forward up the hill, where Rosler would find a place 'off of the highway' to settle the tow bill." Plaintiffs cite to

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absolutely no support for this alleged statement of facts. Rather, Mr. Rosler's testimony revealed that he merely asked the Angel Express driver if it would be alright for "us to go to the exit to get off the highway to take care of the bill." Exhibit 2, deposition of George Rosler, p.15, ll.4-9. 11. On page 3, paragraph 3 of their "Statement of Facts," Plaintiffs allege "Within a

short time, Angel Express had pulled directly behind Rosler as requested. Rosler could see the driver of Angel Express was on his cell phone. Despite requiring Angel Express to stop behind him, directly in a traveled portion of the highway used by motorists exiting I-70, in icy road conditions, Rosler also did not place or ensure that the required warning triangles were deployed behind the Angel Express vehicle to warn approaching motorist." Conspicuously absent is any citation to authority for this "Statement of Facts." Instead Rosler's deposition testimony revealed at no time did Mr. Rosler require the Angel Express driver to stop behind him at the exit. Exhibit 2, Id., p.43, ll.15-25; p.44, ll.1-13. 12. Nor did Rosler at any time force, tell, request or instruct the Angel Express driver

where to park when the trucks arrived at the exit. Exhibit 2, p.21, l.25; p.92, ll.1-12. 13. When the two trucks neared the exit they each pulled off as far to the right as they

could get without going off the pavement and into the ditch. Exhibit 2, deposition of George Rosler, p.21, ll.10-15. Exhibit A, photograph of accident scene. 14. The Angel Express truck stopped approximately 10 feet behind Rosler's towtruck.

Exhibit 2, p.23, ll.11-14; Exhibit B, diagram from State Patrol Accident Reconstruction Report. 15. Both trucks had their emergency flashers activated at the time they stopped by the

exit. Exhibit 2, p.58, ll.17-25; p.59, ll.1-2; p.67, ll.10-19; p.93, ll.4-6; Exhibit C, Affidavit of Sandra Graeff, Elbert County Deputy Coroner.

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16.

Shortly before the accident occurred, State Patrol Trooper Jason Bandy passed the

two trucks stopped by the exit and had no problem seeing them as he passed. Exhibit D, deposition of Jason Bandy, p.6, ll.14-18, Exhibit E, Declaration of Trooper J.E. Bandy, ¶3. 17. Within minutes after the two trucks had stopped at the exit site, the van driven by

Yevgeniy Morozov struck the rear of the Angel Express truck. Exhibit 2, deposition of George Rosler, p.39, ll.22-24. 18. The visibility was clear at the time of the accident. Exhibit D, deposition of Trooper

Jason Bandy, p.6, ll.15-18; Exhibit 2, deposition of George Rosler, p.28, ll.5-17. 19. In Plaintiffs' Statement of Facts, Plaintiffs allege as follows: "Rosler states that the

collision site was located on a 'knoll,' but admits that the 'crest' of the hill was within 500 feet." See page 7 of Plaintiffs' Motion for Summary Judgment, bullet point 7. Plaintiffs fail to advise the court that at his deposition Mr. Rosler admitted that he had never gone out and taken any measurements to determine whether the backend of his truck was more or less than 500 feet from the knoll and that it was possible that it was more than 500 feet. Exhibit 2, p.91, ll.14-25. 20. Plaintiffs also allege in their "Statement of Fact" as follows: "Had the emergency

reflective triangles been placed as required from Rosler's vehicle ­ or Angel Express ­ Morozov would have been warned that the vehicles were stopped in a lane of travel and would have avoided the collision." However, Plaintiff cites to no authority for this alleged Statement of Fact. As addressed below, such "Statement of Fact" is nothing more than mere speculation on the part of Plaintiffs' counsel.

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LEGAL ARGUMENT I. Summary Judgment Standard

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. FED. R. CIV.P.56(c); Matson v. Burlington Northern Santa Fe R.R. Co., 240 F.3d 1233, 1235 (10th Cir. 2001). Therefore, if the moving party demonstrates that there is no genuine issue of material fact as to the existence of any element essential to the non-moving party's case, then summary judgment is appropriate. Tiberi v. Cigna Corp., 89 F.3d 1423, 1428 (10th Cir. 1996) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 106 S.Ct. 2548, 2552 (1986)). Once this initial burden is met, it becomes the burden of the non-moving party to come forward with specific facts, supported by the evidence, upon which a reasonable jury could return a verdict for the nonmoving party. Id. at 1428 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510 (1986)). Genuine issues of material fact cannot be raised by the argument of counsel. Sullivan v. Davis, 474 P.2d 218 (1970). Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial. Tiberi, 89 F.3d at 1428 (quoting First Nat'l Bank of AZ v. Cities Serv. Co., 391 U.S. 253, 289, 88 S.Ct. 1575, 1592 (1968)). Therefore, in order to withstand summary judgment in the case at bar, Plaintiffs carry the burden of proving the existence of facts which, if proven true, would warrant a finding that their claims of negligence per se exist against Defendants George's and Rosler.

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PLAINTIFFS HAVE FAILED TO SHOW THAT DEFENDANTS WERE NEGLIGENT PER SE The main thrust of Plaintiffs' argument in their Motion for Summary Judgment is that these Defendants were negligent per se for failure to place warning triangles behind the Angel Express truck. Their theory, however, is predicated on the blatant misrepresentation that George and Sons and/or George Rosler either required or forced the Angel Express driver to park behind the George and Sons' towing vehicle at the exit ramp. First, Plaintiffs fail to cite to any deposition or affidavit testimony which supports such a proposition Rather, the undisputed deposition testimony of George Rosler shows that Mr. Rosler merely suggested to the Angel Express driver that they drive to a nearby exit to get out of the main traveled portions of Interstate 70 to settle the tow bill. The Angel Express driver agreed to do so. Furthermore, at no time did Mr. Rosler ever force, require, or even tell the Angel Express driver where to park when they reached the exit. While the Angel Express driver did pull up behind George and Sons' towing vehicle, he could have pulled in front of the George and Sons' towing vehicle or even further up on the exit ramp. Nor do Plaintiffs cite to any legal authority which imbues Mr. Rosler with the color of legal authority which would have required the Angel Express driver to follow any instructions Rosler may have given. Plaintiffs cite to no legal authority to support such a proposition because there simply is no such legal authority. In short, George and Sons did not tow the Angel Express vehicle to the position on the exit ramp. Rather, the Angel Express driver made his own independent decision where to go and where to park when the trucks arrived at the exit ramp.

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DEFENDANTS OWED NO DUTY TO ANGEL EXPRESS OR TO THE PLAINTIFFS To recover on a claim of negligence, a plaintiff must establish the existence of a legal duty on the defendant's part, defendant's breach of the duty, causation, and damages. See, Davenport v. Community Corrections of Pikes Peak Region, Inc., 962 P.2d 963 (Colo. 1998). A negligence claim, therefore, must fail if based upon circumstances for which the law imposes no duty of care upon the defendant. See, Martinez v. Lewis, 969 P.2d 213 (Colo. 1998). The initial determination of whether defendant owes a duty to the plaintiff as well as the scope of that duty is a question of law for the court. Bath Excavating and Construction Co. v. Wills, 847 P.2d 1141, 1142 (Colo. 1993). If a court determines that the defendant owed the plaintiff a legal duty, the question of whether the defendant has breached that duty and thereby caused the plaintiff damages is for the jury. See, Perreira v. State, 768 P.2d 1198 (Colo. 1989). In determining whether defendant owes a duty to a particular plaintiff, the law distinguishes between acting and failure to act, that is, misfeasance, which is active misconduct that injures others and nonfeasance, which is failure to take positive steps to protect others from harm. University of Denver v. Whitlock, 744 P.2d 54, 57 (Colo. 1987). The reason for this distinction is that a misfeasant creates a risk of harm; while the nonfeasant, although not creating a risk of harm, merely fails to benefit the injured party by interfering in his or her affairs. See, Perreira v. State, supra. Thus, because in misfeasance the actor has created a new risk, and in nonfeasance the actor has simply preserved the status quo, the situations in which nonfeasance leads to liability are more circumscribed than those for misfeasance. See, Lego v. Schmidt, 805 P.2d 1119 (Colo. App. 1990); Schmidt v. Darwin Anderson; 72 P.3d 369, 372 (Colo. App. 2002).

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The courts therefore apply different tests to establish whether a defendant owed a duty to the injured party depending upon whether the alleged negligence is misfeasance or nonfeasance. See, Lewis v. Emile Clayton Plumbing Co., 25 P.3d 1254 (Colo. App. 2000); Schmidt, supra at 372. In nonfeasance cases, the existence of a duty has been recognized only in a limited number of special relationships between the parties such that social policy justifies the imposition of a duty to act. See, University of Denver v. Whitlock, supra; Lewis v. Emile Clayton Plumbing Co., supra. Hence, there exists a duty to control the conduct of a third person to prevent him from causing physical harm to another only if a special relationship exists between the nonfeasant and either the wrongdoer or the victim. Schmidt, supra at 372. While Colorado has not recognized the relationship between a towtruck driver and a vehicle that had previously been towed and/or a victim who strikes such a vehicle as a special relationship, Colorado courts have rejected imposing "special relationship status on those relationships where the nonfeasant lacks control over the other parties." Community Corrections of Pikes Peak Region, Inc., supra, the court held: Whether a special relationship exists between Pikes Peak and Rutledge depends, in large part upon the level of control exercised by Pikes Peak over its residents. See, Perreira, 768 P.2d at 121516; see also, Restatement (2nd) Torts § 319 (1965). Although Pikes Peak serves a custodial role and has a contractual obligation to closely monitor the activities of its residents, Pikes Peak exerts far less control over its residents than a prison. Pikes Peak residents maintain fulltime employment, provide their own transportation, and readily obtain curfew, weekend, church, overnight, and furlough passes. Thus, offenders housed at Pikes Peak spend a substantial amount of time off the premises without direct supervision. We are therefore persuaded that the level of control exerted by Pikes Peak over Rutledge is insufficient to establish a special relationship in this case. (Citations in original). 962 P.2d at 969. 10 In Davenport v.

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While legal research reveals no other court in any state which has held that a special relationship exists between a towtruck driver and a vehicle which he had previously towed and/or a person who ran into the back of a vehicle previously towed, the case of Mikillian v. City of Los Angeles, 79 Cal. App. 3rd 150, 144 Cal. Rpt. 794 (1978) is analogous. In Mikillian, a towtruck driver had filed suit against the defendant Police and City for injuries he sustained when struck by a vehicle while attempting to tow a vehicle. There, the plaintiff attempted to argue that the police officer had instructed him to park his tow vehicle in a certain location and that the officer had a duty to place warning triangles or other warning devices behind his tow vehicle. The trial court directed a verdict for defendants from which the towtruck driver

appealed. The appellate court first noted that the plaintiff's trial testimony wherein he had claimed he had been instructed by police as to where to park, had been contradicted by his own earlier prior inconsistent statements. As a result, the appellate court held that he had not

presented any issue of fact in this regard. Id. 79 Cal. App. at 158. Then, turning to the issue of duty the court stated: Every negligence case presents a threshold question of whether the defendant has violated any duty to the plaintiff. Unless plaintiff can show such a duty and a violation thereof by substantial evidence, it is the duty of the trial court to grant defendant's Motion for Nonsuit. . . Plaintiff was injured in this case allegedly as the result of an omission (the failure of officers to place flares for his protection). Such an omission is nonfeasance and 'liability for nonfeasance is largely limited to those circumstances in which some special relationship can be established. . .' As this court said in Mann v. State of California, a defendant can be held liable for those negligent omissions only if a special relationship then obtained between him and plaintiff. . .

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The keystone of plaintiff's claim of a special relationship was his assertion that the officers directed him to take the towtruck and impounded vehicle across Vineland and park them on the east side where they were in blind spot for northbound traffic. The inventory report had not been completed by the officers and signed by plaintiff. Pursuant to the rules governing official police garages of the Los Angeles Police Commission, plaintiff was required to 'abide by the decisions of police officers and . . .cooperate in removing hazards, illegally parked vehicles, and impounding vehicles.' If the officers had directed plaintiff where to park until the paperwork was completed, the exercise of such control would have placed him in a position of dependence upon the officers. At trial, plaintiff testified three times that he was directed where to park. However, in his deposition he unequivocably stated that no one directed him to park on the east side of Vineland and that the decision to park there was his own, dictated by the greater ease of this maneuver. These unequivocal statements in his deposition were confirmed by his trial testimony that it was his and not the officers' decision to move the vehicles to the east curb of Vineland. Even on redirect examination when offered the opportunity to reconcile or explain his prior statements by stating his understanding as to what he was to do, plaintiff answered, '[get] it out of the water and get it to an area that was dry' and made no reference to any alleged directive that he was to park on the east side of Vineland. Id. at 159-160. (citations omitted). The court in Mikillian, went on to hold: We conclude on the basis of the foregoing authorities that there was no substantial evidence supporting plaintiff's claim that he was directed to park on the east side of Vineland and that the only finding that a reasonable trier of fact could make in that respect was that it was plaintiff's own decision for his own convenience to park in that location. Such being the case there was nothing left upon which to base plaintiff's claim of duty except the facts that plaintiff was called upon to remain somewhere in the vicinity of the original accident to sign off on an inventory report and that two of the officers present were aware of the fact that he had parked on the east side of Vineland. These facts did not give rise to a special relationship sufficient to impose a duty upon the officers to place flares warning northbound traffic on Vineland. 12

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Id. at 163. Here, Plaintiffs have failed to produce any evidence to support that the Angel Express driver was dependent upon Rosler for putting out the warning devices. Indeed, the Angel Express truck had its own warning flashers on at the time of the accident and presumably also carried the same warning devices as required by law. Nor have Plaintiffs provided any evidence whatsoever that the Angel Express driver was directed by or forced by Rosler to park where he did on the exit ramp. In short, Plaintiffs have failed to show that there was a special relationship between Rosler and the Angel Express driver and that such a duty extended to the Plaintiffs herein. The undisputed fact remains that Morozov's vehicle ran into the back of the Angel Express truck and not George and Sons' Towing vehicle. The Angel Express driver made his own independent decision as to where to place his vehicle near the exit ramp. Moreover, he had his own separate duty to place the warning triangles behind his vehicle. Because Plaintiffs have failed to show that these Defendants owed any duty to Angel Express or to the Plaintiffs, that Plaintiffs' Motion fails as a matter of law. Plaintiffs cite to no legal authority to support the proposition that George and Sons or George Rosler had a duty to place warning triangles behind the Angel Express truck when the Angel Express truck had moved to the exit ramp under its own power and without any assistance from the George and Sons' towing vehicle.

DEFENDANTS COMPLIED WITH THE STATUTE AT ISSUE C.R.S. § 42-4-230 states, in part: 13

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Emergency lighting equipment--who must carry (1) No motor vehicle carrying a truck license and weighing six thousand pounds or more ... shall be operated over the highways of this state at any time without carrying in an accessible place inside or on the outside of the vehicle three bi-directional emergency reflective triangles of a type approved by the department ... (2) Whenever a motor vehicle referred to in subsection (1) of this section is stopped upon the traveled portion of a highway or the shoulder of a highway for any cause other than necessary traffic stops, the driver of the stopped motor vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the bi-directional emergency reflective triangles as directed in subsection (3) of this section. (3) Except as provided in subsection (2) of this section, whenever a motor vehicle referred to in subsection (1) of this section is stopped upon the traveled portion of a highway 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 ten minutes, place the bidirectional emergency reflective triangles in the following manner... (4) No motor vehicle operating as a wrecking car at the scene of an accident shall move or attempt to move any wrecked vehicle without first complying with those sections of the law concerning emergency lighting. (5) Any person who violates any provision of this section commits a class B traffic infraction. Defendants fully complied with the statute at issue. Specifically, at the time of the accident Rosler was carrying the bi-directional emergency triangles required under the statute. Exhibit 2, deposition of George Rosler, p.65, ll.16-25. As previously noted, Rosler pulled the Angel Express semi-truck from the snow-bank and then unhooked the Angel Express truck from the towtruck. Rosler then drove up to the exit ramp, followed by the independently-driven Angel Express truck. Although the towtruck and the Angel Express truck were not still connected, they did pull on the shoulder of the exit lane on Interstate 70. They had been there for only a few minutes in order to 14

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settle the bill for removing the Angel Express truck from the snow-bank when the accident occurred. Rosler was still within the statute's "10 minutes" prescribed period and thus did not violate the statute.

PLAINTIFFS HAVE FAILED TO SHOW THAT THEIR INJURIES WERE PROXIMATELY CAUSED BY DEFENDANTS' FAILURE TO PLACE WARNING TRIANGLES In their Motion, Plaintiffs argue that Morozov would have seen such warning triangles had they been placed by either driver. However, this is nothing more than speculation on the part of Plaintiffs' counsel. A failure to place warning flares "does not constitute actionable negligence unless it is the proximate cause of the injury." Denver-Los Angeles Trucking Co. v. Ward, 164 P.2d 730, 732 (Colo. 1946). In Denver-Los Angeles Trucking Co., the defendant truck driver was traveling up an icy highway in a large truck-trailer going about five miles per hour. His truck started to slip backwards, so he jackknifed the truck in order to prevent it from rolling backwards down the slope of the highway. A second truck was behind him and stopped in order to avoid running into the jackknifed truck. Immediately thereafter, within three or four minutes, a passenger car crashed into the back of the second truck. The Plaintiffs sued the jackknifed truck for

negligence because it blocked the highway and failed to place out warning flares to warn approaching cars. The Colorado Supreme Court held that summary judgment should have been awarded to the Defendant because he was not negligent and the Plaintiff should have seen the truck's lights. Id. at 731. Given the clear visibility at the time of the accident, failure to place warning triangles was not the proximate cause of the accident. If Morozov could not see the large

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semi-truck on the side of the road that had its flashers on, there is no reason to believe warning triangles would have prevented him from running into the back of the truck. More importantly however, because 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. The Angel Express truck was the vehicle in the proper position to place warning flares or triangles so as to warn drivers of its presence, not George's towtruck. Even had George's or Angel Express violated C.R.S. § 42-4-230, a failure to place warning flares "does not constitute actionable negligence unless it is the proximate cause of the injury." A proximate cause cannot be predicated on mere possibility and speculation. See, Widefield Homes, Inc. v. Grigo, 416 P.2d 365 (Colo. 1966). In order to make out a prima facie case, the Plaintiffs' proof is required to show that the alleged negligence was, to say, at least, the probable cause of Plaintiffs' injuries. Here, the Plaintiffs have presented absolutely no evidence that it was this Defendants' failure to put out warning triangles behind the Angel Express truck that was the probable cause of the accident and Plaintiffs' injuries. Rather, it is one of only several possible causes. This, however, is not sufficient in law to impose liability. Widefield Homes, Inc. supra at 366-367. Where the record is devoid of evidence showing a probability of proximate cause, the question becomes one of law for the court. O'Connor v. Boulder Sanitarium Assn, 111 P.2d 633 (Colo. 1941). Here, because Plaintiffs have failed to present any evidence showing that these Defendants' alleged negligence was the probable cause of Plaintiffs' injuries, this court must dismiss Plaintiffs' claim as a matter of law. Plaintiffs' attempted reliance on Hageman v. TSI, Inc., 786 P.2d 452 (Colo. App. 1989) (reh'g denied 1989) (cert. denied 1990) is also without merit. At issue in Hageman was whether the

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driver whose truck was struck failure to place emergency triangles in the precise manner required by law constituted negligence per se. Here, such is not the case. Again it was Angel Express' vehicle which was struck by Morozov, not George and Sons' Towing's vehicle. Thus, Hageman has no application to this case.

THE FEDERAL MOTOR CARRIER SAFETY REGULATIONS HAVE NO APPLICATION TO THIS CASE In their Motion, Plaintiffs attempt to argue that Defendants' alleged violation of 49 C.F.R. §§ 390, et seq. is evidence of negligence per se. However, it should first be noted that Plaintiffs did not plead that violation of the C.F.R.s was negligence per se in this case. Rather, Plaintiffs only pled that violation of Colorado's Revised Statutes were the basis of their negligence per se claim. More importantly, however, is the fact that the C.F.R.s to which Plaintiffs cite have no application in this case. First, Plaintiffs argue that because Mr. Rosler has a commercial driver's license, the C.F.R.s are somehow applicable to him and his vehicle. However, 49 C.F.R. § 390.5 states in part as follows: DEFINITIONS. COMMERCIAL MOTOR VEHICLE Means any self-propelled or towed motor vehicle used on a highway and interstate commerce to transport passengers or property when the vehicle ­ (1) has a gross vehicle weight rating or gross accommodation weighting rate or gross vehicle rate or gross accommodation rate, of 4,536 kg (10,001 lbs) or more, whichever is greater. . . Here, Plaintiffs have offered absolutely no evidence that Mr. Rosler's towtruck is being used in interstate commerce. Rather, Mr. Rosler's business operates only in the State of Colorado. See

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Exhibit G, Affidavit of George Rosler. As such, he is not engaging in interstate commerce and therefore the C.F.R.s which Plaintiffs attempt to rely upon have no application here. Plaintiffs have also failed to provide any competent evidence showing that Defendants violated either C.R.S. 42-4230 or 49 C.F.R. § 392.22 which requires a motor carrier to place three bidirectional emergency reflective triangles if the vehicle is stopped within 500 feet of a curve, crest of a hill or other obstruction to view. In their Motion Plaintiffs attempt to rely on the testimony of George Rosler. However, as noted above, Plaintiffs fail to note to the court that Mr. Rosler has never gone out and taken any measurements at the scene to determine whether his vehicle was within 500 feet of a curve, crest of a hill or other obstruction. The obvious import of this section is to allow drivers ample warning should they come over a crest of a hill or around a curve or other obstruction. However, here the undisputed evidence is that there was no such curve, crest of hill or other obstruction to Morozov's view. Indeed, Plaintiffs' counsel procured an Affidavit from Jason Bandy, the State Trooper who passed the vehicle shortly before the accident and who was the first Trooper to respond to the scene of the accident. In his Affidavit, Trooper Bandy states: Iam[sic] was the first Trooper to respond to the scene of a fatal accident that happened on November 26, 2001 on Colorado Interstate 70 by exit 348, when a Budget Rental Truck driven by Yevgeniy Morozov collided into the back end of a tractor trailer combination that was parked on the shoulder of the interstate, outside of any lane of traffic and clearly visible from significant distance from Mr. Morozov's direction of travel. Exhibit E, Declaration of Colorado State Trooper J.E. Bandy, ¶3. Moreover, Trooper Bandy testified that the area where the accident happened is pretty flat. Exhibit D, deposition of Jason Bandy, p.48, ll.22-25; p.49, l.1-4.

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Case 1:03-cv-02355-RPM

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PLAINTIFFS HAVE FAILED TO MEET THEIR BURDEN FOR SUMMARY JUDGMENT Plaintiffs' Motion is based on little more than hyperbole, speculation, and conjecture. Plaintiffs have provided absolutely no expert testimony to support any of their propositions. Indeed, in their Motion Plaintiffs claim that Morozov would have been able to see the reflective triangles had they been placed by either George and Sons' Towing and/or Angel Express. However, such statements are little more than speculation and conjecture by Plaintiffs. Plaintiffs have provided no competent evidence either through an expert or factually to support such conjecture.2 It is undisputed that George and Sons' Towing carried the requisite bidirectional warning triangles in their trucks at the time of this accident. However, Rosler was at the accident scene only a few minutes before the accident occurred. The Plaintiffs do not posit any viable explanation as to why Morozov, who allegedly was only traveling 40 m.p.h. on a clear day, did not realize that the Angel Express truck was stopped. Morozov certainly could have seen the truck growing larger as he approached it and just like any motorist on a roadway who comes to a stoplight realizes that the vehicles in front of him are stopped and starts to slow. The only plausible explanation as to why Morozov ran into the back of the truck was that he either fell asleep or lost control on the icy roadway. Because he died we will never know. However, Plaintiffs clearly have not raised any undisputed facts in their Motion which would warrant the granting of summary judgment. As such, Defendants would respectfully request that this court deny Plaintiffs' Motion for Summary Judgment Re: Negligence Per Se.

2

Similarly, in their Motion Plaintiffs argue that Morozov was properly exiting the highway at Exit 348 when he ran into the back of the truck. However, there is absolutely nothing at Exit 348, i.e. gas station, restaurant, etc. Rather, the exit simply goes to a pasture. See Exhibit D, deposition of Jason Bandy, p.29, ll.22-25; p.30, ll.1-8. Plaintiffs offer absolutely no plausible explanation as to why Morozov would have been exiting at this place.

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Case 1:03-cv-02355-RPM

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Dated this 13th day of September 2005. Respectfully submitted, /s Andrew J. Carafelli Andrew J. Carafelli HALL & EVANS, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202 (303) 628-3300 ATTORNEYS FOR DEFENDANTS

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Case 1:03-cv-02355-RPM

Document 50

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CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on the 13th day of September 2005, I electronically filed the foregoing DEFENDANTS GEORGE AND SONS' REPAIR SHOP, INC.'S AND GEORGE ROSLER'S RESPONSE TO PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT RE: NEGLIGENCE PER SE with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Komron M. Allahyari, Esq. Washington Law Group 1001 Fourth Avenue Plaza, 32nd Floor Seattle, WA 98154 E-mail: [email protected]

s/Leslie E Grauberger, Secretary Andrew J. Carafelli, Esq. Hall & Evans, L.L.C. 1125 17th Street, Suite 600 Denver, CO 80202-2052 303-628-3300 303-293-3231 ­ Fax [email protected] ATTORNEYS FOR DEFENDANTS

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