Free Motion for Summary Judgment - District Court of Colorado - Colorado

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-M-2355 (CBS) 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' MOTION FOR PARTIAL SUMMARY JUDGMENT RE: NEGLIGENCE PER SE ____________________________________________________________________________

I. INTRODUCTION This is an action for damages for negligence and for wrongful death. The plaintiffs are the survivors and dependents of driver Yevgeniy Morozov and passenger Alexander Bugaychuk, who were killed as a result of a collision on Interstate 70 near Limon, Colorado. While properly attempting to exit the freeway, Morozov drove into the back of a tractor-trailer combination which was stopped, with defendants' tow vehicle in front of it, directly in the exit (deceleration) lane specifically intended for vehicles exiting Interstate 70 at Exit 348.

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Morozov did not realize the vehicles were stopped in the traveled portion of the highway because defendant George Rosler, owner of George's Towing, failed to deploy emergency warning triangles (1) behind his own vehicle, and (2) behind a tractor-trailer combination owned by Angel Express ("Angel Express") after he instructed Angel Express to stop behind him for the sole purpose of settling the tow bill. Defendants' failure in both cases was an independent violation of Colorado highway safety statutes and federal regulations. Had defendants deployed the warning triangles as required in either case, the warning triangles would have been deployed for approximately 500 feet from the Rosler and Angel Express vehicles. With 500 feet of warning triangles, Morozov would have realized Angel Express was stopped instead of a moving vehicle exiting the freeway. Had defendants met their duty under the law, this collision would never have occurred. Defendants' failure constitutes negligence per se under Colorado law, for which there is no competent evidence to support an affirmative defense. Accordingly, plaintiffs respectfully pray for an order granting partial summary judgment with respect to duty, breach, and proximate cause, leaving for the jury issues of compensatory and punitive damages, and potential offset and/or apportionment of damages resulting from the negligence of Angel Express.

II. RELIEF REQUESTED Plaintiffs request an order granting partial summary judgment with respect to the issues of duty, breach, and proximate cause under applicable highway safety laws and the doctrine of negligence per se.

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III. STATEMENT OF FACTS In the early morning hours of November 26, 2001, Angel Express became stuck in snowy and icy conditions at the bottom of a hill on Interstate 70 near Limon, Colorado. Defendant George's Towing was called to tow Angel Express free of the ice and snow. 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. After driving approximately 500 feet beyond the crest of the hill, Rosler inexplicably decided to stop in the right (deceleration) lane used by motorists for exiting I-70 at Exit 348. Although Rosler had stopped in a traveled portion of the highway only 350 feet from Exit 348, in icy conditions, he admits he did not deploy the required warning triangles. Rosler admits he knows what his legal duty requires: "when you pull off to the side of the road, as soon as possible, you put reflectors out." 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 motorists. Rosler maintains he had no duty to place warning triangles for Angel Express, since he had not towed them to that location. Instead, Rosler and his passenger sat in the tow truck to stay warm, while Rosler waited for the Angel Express driver to finish his cell phone conversation. Unfortunately, while Rosler was waiting "a very few minutes" for the driver to finish his phone call, a Budget rental vehicle driven by decedent Morozov approached up the hill from the Page -3-

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rear. Apparently believing the vehicles were exiting the highway at Exit 348, Morozov violently struck the back end of Angel Express. Morozov was killed instantly with massive head trauma. Decedent Bugaychuk lay conscious, believed to be heard praying in his native Russian language. Decedent Bugaychuk died approximately 3 weeks later from the fatal injuries he sustained in the collision, his mother and other family members at his side. According to Colorado State Trooper Jason Bandy, the first officer on the scene, Morozov drove directly into the back of Angel Express without any skidding or other indication of losing control. When asked "...it was as if, you know, you are driving behind a semi truck but that semi truck is not moving and you go straight into it, right?" Trooper Bandy responded: "Correct. It was a direct hit."1 Rosler has effectively admitted liability under Colorado law. Furthermore, his willful and wanton disregard for the safety of others - i.e. casually waiting in his tow truck when he knew the Angel Express driver was on the phone and therefore knew that warning triangles were not being deployed to warn motorists they were stopped in a lane of travel - may also entitle the plaintiffs to punitive damages under Colorado law. During his deposition on November 23, 2004, Rosler testified as follows: · · · The road conditions consisted of snow and ice.2 Rosler provided towing services to Angel Express.3 After providing towing services to Angel Express, Rosler asked the Angel Express driver

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Exhibit 1, true and correct copy of Trooper Jason Bandy Deposition Transcript, at 61:14-62:4. Exhibit 2, true and correct copy of George Rosler Deposition Transcript, at 8:19-23. Exhibit 2, at 11:10-12.

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to proceed to the next "exit to get off of the highway to take care of the bill."4 · Rosler admits he also did not deploy the required warning triangles when he originally provided towing services to Angel Express.5 · Although the speed limit was 75 m.p.h., due to the icy and snowy road conditions Rosler drove approximately 30-40 m.p.h.6 · As Rosler requested, the Angel Express driver followed Rosler up the hill to where Rosler stopped his tow vehicle.7 · Rosler decided he did not want to actually get off I-70 at the exit for fear of having to pull Angel Express back onto the highway due to the snow.8 · Rosler stopped his tow truck, with Angel Express stopping approximately 10 feet behind him. The vehicles remained in that position until the subject accident.9 · After the vehicles stopped, Rosler waited "a very few minutes" and watched in his rearview mirror while the driver of Angel Express talked on a cell phone.10 · Rosler remained in his tow vehicle with the heater on "`cause it was cold."11

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Exhibit 2, at 15:4-9. Exhibit 2, at 16:10-19. Exhibit 2, at 19:7-10. Exhibit 2, at 20:21-25. Exhibit 2, at 20:5-15. Exhibit 2, at 23:11-23. Exhibit 2, at 24:7-20. Exhibit 2, at 25:14-18.

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· ·

Rosler finally decided to exit his vehicle after the collision.12 In regard to the warning triangles, Rosler admits that none were placed by Rosler or Angel Express.13

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Rosler admits he knows what his legal duties are for his "wrecker" - "when you pull off to the side of the road, as soon as possible, you put reflectors out."14

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Rosler claims he (and his passenger) did not "have time" to deploy the warning triangles "We wasn't there but just a very few minutes."15

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Rosler maintains only Angel Express was responsible for deploying the warning triangles.16

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Although Rosler denies that he "required" Angel Express to stop behind him17, Rosler admits that he "believed both of us was where we ought have been."18

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Rosler was in a hurry to assist another motorist down the road, indicating a possible reason he failed to either pull off the highway, take the time to deploy the required warning triangles, or travel to a safe location such as the approaching town which was in the same direction as both Rosler and Angel Express were traveling.19

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Exhibit 2, at 30:20-24. Exhibit 2, at 38:22-39:1-15. Exhibit 2, at 40:8-14. Exhibit 2, at 40:15-23. Exhibit 2, at 40:24-41:1-6. Exhibit 2, at 43:15-24. Exhibit 2, at 45:10-19. Exhibit 2, at 46:15-19.

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·

Rosler admits he regularly fails to deploy warning triangles when towing "If it only takes me a very short time to get it done...."20

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At the time of the collision, Rosler admits he and Angel Express were completely stopped in a lane of I-70 used for exiting the freeway.21

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Rosler admits that the first warning triangle that Morozov would have seen would have been 200 feet from the Angel Express truck.22

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Rosler's understanding regarding his duty is that "we have a few minutes sitting alongside the road before you have to put the warning devices out."23

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Since Rosler and Angel Express were traveling the same direction after the towing service, Rosler admits there were several exits and a truck stop that they could have used to pull completely off the highway.24

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Rosler admits he stopped at the location of the collision for the sole purpose of settling the tow bill.25

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Rosler states that the collision site was located on a "knoll", but admits that the "crest" of the hill was within 500 feet.26

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Rosler admits that he carries a CDL (commercial driver's license), since his tow truck is

20

Exhibit 2, at 51:6-15. Exhibit 2, at 53:6-24. Exhibit 2, at 59:16-21. Exhibit 2, at 60:19-61:1-6. Exhibit 2, at 61:16-65:3 Exhibit 2, at 67:1-9. Exhibit 2, at 69:8-70:3.

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considered to be a semi-truck.27 · In regard to the collision, Rosler states that it "looked like [Morozov] ran right into the back of the [Angel Express] truck."28 · Rosler states that he places no blame on Angel Express for failing to place the warning devices.29 · Rosler states that his understanding of his legal duty is consistent with Colorado Revised Statute 42-4-230.30 However, Rosler maintains he was not on the "traveled portion of the highway" at the accident location because, in Rosler's opinion, the traveled portion only includes the two lanes down the highway - not the 3rd deceleration lane specifically intended for motorists exiting I-70.31 Ironically, Rosler believes "the shoulder is in the traveled portion of the highway."32 The collision was investigated by the Colorado State Patrol.33 The Accident Report provides that Angel Express "was parked on the eastbound off ramp of Colo. 70." Ex. 3. The diagram on the Accident Report shows Angel Express's position at impact, effectively blocking the entire lane of traffic exiting Interstate 70. The drawing also indicates there was "no pre-

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Exhibit 2, at 70:18-71:7. Exhibit 2, at 77:7-12. Exhibit 2, at 78:21-24. Exhibit 2, at 79:21-80:18. Exhibit 2, at 83:1-7. Exhibit 2, at 83:22-23. True copy of relevant portion of Colorado State Patrol Accident Report, attached as Exhibit 3 ("Accident

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Report").

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impact braking by vehicle 1 [Mr. Morozov]." There is no evidence upon which a reasonable jury could infer that Morozov was comparatively negligent. Rosler's sworn testimony and admissions remove any remaining issues at to Morozov's comparative negligence. Furthermore, the Accident Report provides that Morozov was traveling only 42 miles per hour on impact, while the speed limit along that portion of I-70 is 75 m.p.h. 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 the lane of travel and would have avoided the collision. In fact, had the warning triangles been deployed as required for 500 feet, Morozov would literally have had to run over warning triangles for more than the length of a football field in order to come into contact with Angel Express. The Accident Report provides that Morozov engaged in "no pre-impact braking." A reasonable jury could only conclude that Morozov did not realize Angel Express was actually stopped in the deceleration lane until it was too late.

IV. EVIDENCE RELIED UPON Plaintiffs rely upon the Deposition Transcripts of Trooper Jason Bandy and George Rosler, the Exhibits attached hereto, and upon the pleadings and papers on file herein.

V. A. Summary Judgment Standard.

ARGUMENT

Summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, and admissions if any, together with affidavits, if any, show that there is no Page -9-

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genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The non-moving party must come forward with specific facts showing that there is a genuine issue of material fact for trial. Matsushita Electric Industrial Co. v. Ian's Radio Corp., 106 S.Ct. 1348 (1986). Unless the non-moving party can set forth a reasonable factual basis for its claims or defenses, the court must grant the motion. T.W. Electrical Service, Inc. v. Pacific Electrical Contractors Assoc., 809 F.2d 626 (9th Cir. 1987). Where reasonable minds could not find that the facts presented by the non-moving party are credible, the moving party will be entitled to judgment as a matter of law. Simms v. Reiner, 419 F.Supp. 468, 475 (N.D.Ill. 1976); Whitaker v. Coleman, 115 F.2d 305, 306 (5th Cir. 1940).

B.

Defendants Are Strictly Liable For Plaintiffs' Damages Under Colorado Law. Colorado Revised Statute 42-4-230 provides: (1) No motor vehicle carrying a truck license and weighing six thousand pounds or more and no passenger bus 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 bidirectional emergency reflective triangles of a type approved by the department, but the use of such equipment is not required in municipalities where there are street lights within not more than one hundred feet. (2) Whenever a motor vehicle referred to in subsection (1) of this section is stopped upon the traveled portions of the highway for any cause other than necessary traffic stops, the driver of the stopped vehicle shall immediately activate the vehicular hazard warning signal flashers and continue the flashing until the driver places the bidirectional 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 Page -10-

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manner: (a) One at the traffic side of the stopped vehicle, within ten feet of the front or rear of the vehicle; (b) One at a distance of approximately one hundred feet from the stopped vehicle in the center of the traffic lane or shoulder occupied by the vehicle and in the direction of the traffic approaching in that lane; and (c) One at a distance of approximately one hundred feet from the stopped vehicle in the opposite direction from those placed in accordance with paragraphs (a) and (b) of this subsection (3) in the center of the traffic lane or shoulder occupied by the vehicle; or (d) If the vehicle is stopped within five hundred feet of a curve, crest of a hill, or other obstruction to view, the driver shall place the emergency equipment required by this subsection (3) in the direction of the obstruction to view at a distance of one hundred feet to five hundred feet from the stopped vehicle so as to afford ample warning to other users of the highway; or (e) If the vehicle is stopped upon the traveled portion or the shoulder of a divided or one-way highway, the driver shall place the emergency equipment required by this subsection (3), one at a distance of two hundred feet and one at a distance of one hundred feet in a direction toward approaching traffic in the center of the lane or shoulder occupied by the vehicle, and one at the traffic side of the vehicle within ten feet of the rear of the vehicle. (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. (Emphasis added.). Further, Colorado Revised Statutes 42-4-1204(1)(i) provides that it is unlawful for any person to "stop, stand, or park a vehicle" on any controlled access highway. In the present case, Rosler admits he failed to place the bidirectional emergency reflective triangles behind his vehicle, as required by CRS 42-4-230. Rosler admits he did not even attempt to deploy the warning triangles, even though CRS 42-4-230(3) required Rosler to do so "as soon as possible." Instead, Rosler admits he sat in the relative warmth of his tow vehicle for a "few minutes," while he watched the driver of Angel Express in his rear-view mirror and waited for him to finish his cell phone call.

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Instead of waiting in his warm vehicle, Rosler could have used the "few minutes" to begin deploying the required warning triangles alongside and behind his vehicle. The warning triangles would have necessarily extended 500 feet from Rosler's tow vehicle, and would have provided adequate warning to Morozov. But for Rosler's extreme indifference to the safety of oncoming motorists and failure to deploy warning triangles as required by law, the subject collision would not have occurred. Rosler may attempt to argue that his duty under CRS 42-4-230 to deploy warning triangles for his stopped vehicle was relieved when Angel Express pulled up behind him and joined him as another stopped vehicle in the traveled portion of the highway. However, there is no legal authority for such a proposition. Not only had Rosler specifically requested that Angel Express stop in the lane of travel, but Rosler, while he waited in his own vehicle, could see that Angel Express was not deploying any warning triangles and therefore motorists were not being warned. Since Morozov was properly attempting to exit the freeway at Exit 348, the lack of braking and evasive maneuvers evidenced at the scene indicate Morozov never realized Rosler and Angel Express were stopped until it was too late. According to Trooper Bandy, Morozov did not lose control of his vehicle, but instead drove straight into the back of Angel Express with no evidence of skidding or braking. Rosler negligently left Morozov without the specific warning CRS 42-4-230 was designed to provide - notice that a vehicle was stopped in the traveled portion of the highway. Under these circumstances, the courts have found no comparative negligence on the part of the following motorist. In Commercial Carriers, Inc. v. Driscoll Truck Lines, Inc., 408 P.2d 445 Page -12-

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(1965), the defendant carrier's tractor-trailer combination skidded on an icy highway at approximately 9 a.m. on a drizzly winter morning, and came to stop partially blocking a lane of the highway in a visible location. The driver of the tractor-trailer failed to place emergency triangles behind the vehicle. The plaintiff was able to see the stopped tractor-trailer, but did not realize that it was stopped until it was too late to avoid a collision. The trial court found that the failure to place emergency triangles was the proximate cause of the accident, and as a result, the plaintiff was not comparatively negligent. The appellate court agreed, holding that other drivers must be warned of a foreseeable road hazard through the use of warning flares or emergency triangles. In addition to regulation under Colorado law, George's Towing is subject to similar federal regulation as an "operator" of a "commercial motor vehicle." 49 CFR §390.5. Tow trucks are not exempt from these regulations. 49 CFR §390.23(a)(3). The applicable federal regulations provide: § 392.22 Emergency signals; stopped commercial motor vehicles. (b) Placement of warning devices­ (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. Therefore, in addition to Colorado law, 49 CFR §392.22 required Rosler to place the warning devices up to 500 feet from his stopped vehicle. The federal regulations also required Rosler to exercise "extreme caution" when hazardous conditions such as snow and ice were present.

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§ 392.14 Hazardous conditions; extreme caution. Extreme caution in the operation of a commercial motor vehicle shall be exercised when hazardous conditions, such as those caused by snow, ice, sleet, fog, mist, rain, dust, or smoke, adversely affect visibility or traction. Speed shall be reduced when such conditions exist. If conditions become sufficiently dangerous, the operation of the commercial motor vehicle shall be discontinued and shall not be resumed until the commercial motor vehicle can be safely operated. Whenever compliance with the foregoing provisions of this rule increases hazard to passengers, the commercial motor vehicle may be operated to the nearest point at which the safety of passengers is assured. § 392.8 Emergency equipment, inspection and use. No commercial motor vehicle shall be driven unless the driver thereof is satisfied that the emergency equipment required by Sec. 393.95 of this subchapter is in place and ready for use; nor shall any driver fail to use or make use of such equipment when and as needed. (Emphasis added.) Rosler is unable to claim that he exercised extreme caution when he stopped his tow vehicle in the traveled portion of the highway to settle a tow bill, then decided to wait for the Angel Express driver to finish his phone call instead of warning oncoming motorists like Morozov. In fact, Rosler violated each of the foregoing statutes when he stopped without immediately deploying the warning devices required under §392.22(b)(2)(iv), despite the mandatory language of §392.8 requiring such use as needed, and the mandatory language of §392.14 requiring the exercise of extreme caution when hazardous conditions affect either visibility or traction. Instead of exercising extreme caution, Rosler made no effort whatever to comply with his legal obligation to warn oncoming drivers of the hazard created by his vehicle and that of Angel Express. Under Colorado law, a violation of any of the highway safety provisions set forth above constitutes negligence per se. Hageman v. TSI, Inc., 786 P.2d 452 (Colo. App. 1989)(reh'g

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denied, 1989)(cert. denied, 1990). In Hageman, the plaintiff's husband was killed when the semi-tractor he was driving collided with a stopped tractor-trailer owned by the defendant TSI. Id. at 453. The driver of the TSI vehicle testified that his engine died. Id. He placed two or three warning triangles in the vicinity of his truck, the farthest about 90 feet from the truck. Id. The trial court refused the plaintiff's request to instruct the jury that TSI's failure to place emergency triangles in precise manner required by law constituted negligence per se. Id. The Colorado Court of Appeals reversed and remanded for trial, holding that a jury must be instructed that violations of 49 CFR §392.21 and §392.22 constitute negligence per se. Id. at 455. In the present case, Rosler effectively admits he violated both federal and state safety standards when he failed to place emergency triangles behind his vehicle after stopping to settle a tow bill. Under Hageman, this unlawful conduct constitutes negligence per se, and defendants are strictly liable for any damages proximately resulting from their failure to comply with the applicable regulations. Morozov was not negligent and was not in violation of Colorado's rules of the road. The presumption of negligence which normally arises in a rear-end accident does not apply when a motorist strikes a stationary vehicle on or alongside the roadway. Bettner v. Boring, 764 P.2d 829, 834 (Colo. 1988). In Bettner, the court upheld a verdict in favor of the following driver, holding that a motorist who strikes a stopped vehicle parked alongside an icy highway is not negligent, where the stopped vehicle violated highway safety laws. Id. Moreover, since Morozov was not in violation of any Colorado statute when his vehicle collided with the back of Angel Express, Rosler cannot assert comparative fault as a defense to Page -15-

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the negligence per se claims in the present case. See Hageman at 454 (citing with approval La Garde v. Aeverman, 356 P.2d 971, 973 (Colo. 1960)). The only defense to negligence per se is impossibility, which would require Rosler to prove that it was impossible for him to comply with the applicable statutes, or that compliance would have subjected him to imminent danger or peril. La Garde, 356 P.2d at 973. Neither exception is applicable to the present case. The Hageman and Bettner decision illustrate Colorado's strong public policy in favor of protecting innocent motorists from the consequences of a tortfeasor's failure to abide by highway safety laws. In Hageman, the jury had no difficulty assessing fault to the driver of the stopped semi-truck, even without being correctly instructed on negligence per se, where the driver testified that his engine failed. The facts in the present case plunge much deeper into negligence, representing a wilful and reckless disregard for highway safety and human life. Rosler and his company are liable for any and all damages occasioned by his failure to deploy the proper highway safety devices, as a matter of law. WHEREFORE, plaintiffs respectfully pray for an order consistent with the matters set forth herein. Dated this August 14, 2005. Respectfully submitted, /s___________________________ Komron Michael Allahyari WASHINGTON LAW GROUP 1001 Fourth Avenue Plaza, 32nd Floor Seattle, WA 98154 (206) 423-1045 ATTORNEYS FOR PLAINTIFFS

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CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on August 14, 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 (206) 423-1045 [email protected] ATTORNEYS FOR PLAINTIFFS

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