Free Motion in Limine - District Court of Colorado - Colorado

Case 1:02-cv-01697-WYD-MJW

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Filed 08/26/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 02-cv-1697-WYD-MJW

MARIE HENNING Plaintiff, v. ROSESTAR SOUTHWEST, LLC, d/b/a HYATT REGENCY BEAVER CREEK,

Defendant(s). ______________________________________________________________________________ MOTION IN LIMINE ______________________________________________________________________________ Marie Henning ("Plaintiff"), by and through counsel, SCHUETZE & GORDON, LLP and DUFF, LARSON & PEARL, LLC, moves the Court to exclude certain evidence that Defendant Rosestar Southwest, LLC d/b/a/ Hyatt Regency Beaver Creel ("Defendant Hyatt") may attempt to introduce, and as grounds therefore states as follows: 1. Plaintiff's counsel certifies that they have conferred pursuant to

D.C.COLO.LCivR 7.1(A) with counsel for Defendant Hyatt regarding the filing of this pleading and Defendant's counsel has stated that he will oppose this motion. 2. This is a premises liability action regarding the injuries, damages and losses

Plaintiff experienced as a result of a fall caused by a collapsing chair at Hyatt's hotel. On and around December 14, 2000, Plaintiff and her significant other, Rodney Hamilton ("Mr. Hamilton"), were staying at the Hyatt Regency-Beaver Creek. Their room had been "comped"

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by the hotel because Plaintiff had an ongoing business relationship with the hotel spa. Mr. Hamilton was also Plaintiff's business partner and confidant. 3. Defendant Hyatt may attempt to introduce certain improper evidence as a means

of affecting the jury's determination of the Plaintiff's claim. Specifically, Plaintiff anticipates that Defendant Hyatt may seek to introduce the following: 1) Evidence that Mr. Hamilton is married to another woman; 2) Evidence that Mr. Hamilton acts as Plaintiff's minister, spiritual advisor, or some other characterization of Mr. Hamilton acting as Plaintiff's religious counselor; and 3) Evidence that Mr. Hamilton and Plaintiff's stay at the Hyatt hotel at and around the time of the incident was complimentary. 4. Relevant evidence is generally admissible. Fed. R. Evid. 402. Evidence which is

not relevant is not admissible. Id. "A fact or proposition is `relevant' if it has a tendency to make the proposition that it is offered to prove more probably so than if the evidence was not introduced. The proposition that the evidence is offered to prove must of course be `material' or the evidence may not be received. The proffered evidence must be relevant to prove a

proposition that is itself `of consequence to the determination of the action,' i.e., material to the lawsuit." U.S. v. Fountain, 2 F.3d 656, 667 (6th Cir. 1993). 5. Although possibly relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence. Fed. R. Evid. 403.

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ARGUMENT 6. Plaintiff anticipates that Defendant Hyatt will attempt to introduce evidence that

at the time of the accident, while Mr. Hamilton was dating Plaintiff, he was married to another woman. Such evidence is immaterial and has no logical relevance to the issues of the case, i.e., whether Defendant is liable under the Colorado Premises Liability Statute ("CPLA") for failing to use reasonable care to protect Plaintiff from a dangerous condition on Defendant's property. Colo. Rev. Stat. § 13-21-115. Accordingly, this evidence is not admissible pursuant to Fed. R. Evid. 402. Even if this evidence was deemed relevant, it should be excluded because the probative value, if any, of this evidence is substantially outweighed by the danger of unfair prejudice. Evidence that Plaintiff and Mr. Hamilton were in a relationship is relevant, but introduction of evidence of Mr. Hamilton's marital status would not serve to prove any of the issues related to liability or damages and could cause the jury to base their decision on a moral judgment or emotion. Because this evidence is immaterial and irrelevant and its introduction could cause unfair prejudice to Plaintiff, it should be excluded. 7. Plaintiff anticipates that Defendant Hyatt may attempt to introduce evidence that

Mr. Hamilton acts as Plaintiff's spiritual advisor, minister or some similar characterization of Mr. Hamilton as Plaintiff's religious counselor. Specifically, Defendant may attempt to elicit testimony similar to the following excerpt from Mr. Hamilton's deposition: Q: Were you aware of Ms. Henning having significant

problems with stress in the, say, two years before December 13 of 2000? A: Q: Yes. Okay. Relating to what?
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A:

I don't know if I would say stress, but I would say that I

know that she was having some issues in her life--and I was ministering to her about them. Q: A: Q: A: What problems? Spiritual problems. Specifically related to what? Gaining a closer relationship to God.

This evidence is immaterial and has no logical relevance to the issues of the case. Accordingly, this evidence is not admissible pursuant to Fed. R. Civ. P. 402. Even if this evidence was deemed relevant, it should be excluded because the probative value, if any, of this evidence is substantially outweighed by the danger of unfair prejudice. Any evidence of

Plaintiff's religious beliefs and practices fails to prove any material issue of the case and could only cause the jury to disregard the factual evidence and base their decision on moral or religious grounds. 8. Plaintiff anticipates that Defendant Hyatt will attempt to introduce evidence that

the Plaintiff and Mr. Hamilton's stay at the Defendant's hotel at and around the time of the accident was complimentary. This evidence could potentially cause jurors to inaccurately apply the standard of care imposed by the CPLA. The status classifications contained in the CPLA necessarily and clearly delineate the duty a landowner owes an injured trespasser, licensee, or invitee. Vigil v. Franklin, 103 P.3d 322, 328 (Colo. 2004). It is immaterial that Plaintiff and Mr. Hamilton did not pay for the hotel room where they were staying on the morning of the accident. Indeed, Defendant Hyatt has already stipulated that Plaintiff was an invitee pursuant to the
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CPLA. (Final Pretrial Order at p. 3, Stipulation #2). Because evidence that Plaintiff and Mr. Hamilton's stay was complimentary is irrelevant, immaterial and could cause unfair prejudice and confusion of the issues, it should be excluded. WHEREFORE, in reliance on the argument and supporting facts set forth above, Plaintiff respectfully asks the Court to prohibit Defendant Hyatt from referring to or offering any evidence or argument relating to, 1) Mr. Hamilton's marital status; 2) counseling, spiritually or otherwise, Mr. Hamilton may provide to Plaintiff; and 3) the fact that Mr. Hamilton and Plaintiff's stay was complimentary, either directly or indirectly, including during voir dire, opening statement, questions to or testimony by witnesses, and closing argument. Respectfully submitted on August 26th, 2005.

By:_s/Glen F. Gordon________ Glen F. Gordon SCHUETZE & GORDON LLP 1327 Spruce Street, Suite 300 Boulder, Colorado 80302 (303) 444-5944 Email: [email protected] and Todd S. Larson DUFF, LARSON & PEARL, LLC 1675 Larimer Street, Suite 850 Denver, Colorado 80202 (303) 825-1670 Email: [email protected] Attorneys for Plaintiff

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CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing Motion in Limine was delivered via Electronic Case Filing on this 26th day of August, 2005, addressed to the following: Michael C. Wathen, Esq. RAY LEGO & ASSOCIATES 7600 E. Orchard Road, Suite 200 S Greenwood Village, CO 80111 (303) 740-4966 Email: [email protected]

By:

s/ Glorianne Scott Glorianne Scott

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