Free Response to Motion - District Court of Colorado - Colorado

Case 1:04-cv-00332-REB-CBS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 04-cv-00332-REB-CBS SCOTT HILL, Individually; THE ESTATE OF APRIL HILL, Scott Hill, Personal Representative; JOHN PAUL, Conservator for the Estate of Hope Paul, a minor; SCOTT HILL, Conservator for the Estate of Katelyn Hill, a minor; GENE CRABTREE, Conservator of the Estate of Dennis Scoggins, a minor, Plaintiffs, v. WESTERN DOOR, a Division of LUMBER PRODUCTS, INC., a Foreign Corporation, d/b/a in Colorado; and CRISTOBAL BONILLA, Defendants. ________________________________________________________________________ DEFENDANTS' RESPONSE TO PLAINTIFFS' MOTION FOR RECONSIDERATION CONCERNING COURT' ORDER ON DEFENDANTS' S MOTION FOR PARTIAL SUMMARY JUDGMENT ________________________________________________________________________ Defendants, Lumber Products and Cristobal Bonilla, through their attorneys, Montgomery Little & McGrew, P.C., file their Response to Plaintiffs' Motion for Reconsideration Concerning Court' Order on Defendants'Motion for Partial Summary s Judgment as follows: BACKGROUND Defendants filed a Motion for Partial Summary Judgment with this Court asserting that Plaintiffs'could not establish a prima facie case for negligence per se based on alleged violations of the Federal Motor Carrier Safety Regulations. This Court granted Defendants'Motion on November 8, 2005. Plaintiffs'argue this Court was wrong in that ruling. Plaintiffs'argument fails because the additional evidence provided by Plaintiffs does not cure the fatal flaw that Plaintiffs cannot demonstrate a causal link

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between violation of the FMCSRs and Plaintiffs' injuries. Moreover, reconsideration is inappropriate because Plaintiffs provide the Court with supporting facts that they could have presented when they filed their responses to Defendants' motion and supplementary motion for partial summary judgment. ARGUMENT AND LAW 1. The Deposition Testimony Cited by Plaintiffs Does Not Create an Issue of Material Fact That the Alleged Violations of the FMCSRs Caused the Accident. Plaintiffs'allege that there is a causal connection between the alleged violations of the Federal Motor Carrier Safety Regulations §391.21 and §391.23 and Plaintiffs' injuries. Plaintiffs'provide the Court with a variety of testimony from depositions in an attempt to demonstrate that a causal connection exists. The crux of Plaintiffs argument is that had Defendants complied with FMCSRs 391.21 and 391.23, Mr. Bonilla would not have been hired as a driver and the collision would never have occurred. The fatal flaw in Plaintiffs'argument is that it is nothing more than speculation regarding the proximate cause of the accident. For Plaintiffs to prevail on a claim of negligence per se, Plaintiffs must be able to show violation of the regulation is the proximate cause of the injury. Lambotte v. Payton, 363 P.2d 167, 168 (Colo. 1961). "The violation of a statute or ordinance enacted for the protection of persons or property does not ipso facto import liability unless the violation be shown by proper proof to have been the proximate cause of the injury." Id. at 168. The rule of proximate cause requires proof that but for the defendant' negligence the s damage would not have occurred. Safeway Stores v. Rees, 381 P.2d 999, 1004 (Colo. 1963). A plaintiff cannot rely on mere possibilities or speculation to establish proximate cause. Id.; Mendoza v. White Stores, Inc., 488 P.2d 90, 92 (Colo. App. 1971). "No number of mere possibilities will establish a probability." U.S.F. & G. Co. v. Ind. Com., 219 P.2d 315, 317 (Colo. 1950) (internal citation omitted). Plaintiffs have the burden of

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proving Mr. Bonilla failed to act as a reasonable driver in the situation presented to him and that his alleged failure to act reasonably was the proximate cause of the accident. See Scott v. Matlack, 39 P.3d 1160, 1166 (Colo. 2002).

Plaintiffs'argument in their Motion for Reconsideration, boiled down, goes like this: had the FMCSRs been followed then Mr. Bonilla would not have been hired; had Mr. Bonilla not been hired a different driver would have been driving the truck; had a different driver been driving the truck at the time of the accident then that different driver would have reacted differently; had the driver acted differently, the accident would not have occurred. Proximate cause cannot be established based on the alleged violations of the FMCSRs and the speculation that must follow. See Safeway Stores, supra. The proximate cause issue in this case is not, as Plaintiffs argue, whether Mr. Bonilla would or would not have been hired or whether a different driver in Mr. Bonilla' s position would have acted differently but whether Mr. Bonilla' conduct was negligent s and the proximate cause of the accident. See Id. The additional evidence provided by Plaintiffs to support their argument is insufficient to create an issue of material fact regarding whether Defendants'alleged violation of the FMCSRs was the proximate cause of Plaintiffs'alleged injuries. The evidence provided by Plaintiff does nothing more than provide possibilities about what might have occurred had Mr. Bonilla not been hired. 2. Plaintiffs' Motion is Inappropriate Because the Supporting Facts Presented Could Have Been Originally Presented in Plaintiffs' Responses. Even if this Court determines there is sufficient evidence to establish a causal connection, reconsideration is not proper in this case. Plaintiffs argue pursuant to F.R.C.P. 60 reconsideration is proper because "the information supporting this causal

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connection, namely Mrs. Hebert' and Mr. Wissbaum' depositions, were not available to s s Plaintiffs at the time Plaintiffs filed their response to Defendant' Motion for Partial s Summary Judgment." (See Plaintiffs'Motion for Reconsideration p. 5.) This is simply not accurate. As is shown by the depositions attached to Plaintiffs'Motion for Reconsideration, the deposition of Mr. Richmond was taken on February 23, 2005 and the depositions of Mr. Wissbaum and Ms. Hebert were taken on August 31, 2005. Plaintiffs' filed their response to Defendants'Supplementary Motion for Partial Summary Judgment on September 13, 2005, after all three of the depositions cited in Plaintiffs' Motion for Reconsideration were taken. Plaintiffs filed their Response to Defendants' Motion for Partial Summary Judgment on June 7, 2005, after Mr. Richmond' deposition s had been taken. Plaintiffs had the testimony they now present to the Court available to include in their responses to Defendants'Motion for Partial Summary Judgment. Plaintiffs chose not to provide the Court with this information. A motion for reconsideration "is not a second opportunity for the losing party to make its strongest case or rehash or expand on arguments that previously failed." Hammond v. City of Junction City, 168 F. Supp. 2d 1241 (D. Kan. 2001); Voelkel v. General Motors Corp., 846 F. Supp. 1482 (D. Kan. 1994); aff' 43 F.3d 1484 (10th Cir. d, 1994). Motions for reconsideration are not appropriate if the movant asks the court to hear new arguments or consider supporting facts that could have been presented originally. Hammond, supra; Brown v. Presbyterian Healthcare Servs., 101 F.3d 1242, 1332 (10th Cir. 1996) (emphasis added). That is exactly the case here. Plaintiffs could have presented this evidence in either of the responses they filed. They did not. Reconsideration pursuant to F.R.C.P. 60 is not proper.

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SUMMARY Plaintiffs' motion for reconsideration must be denied. They have not presented evidence sufficient to create an issue as to a material fact in order to overcome summary judgment on the negligence per se claims. The flaw in Plaintiffs'argument is that they are speculating regarding a causal connection between the alleged violations of the FMSCRs and the accident. Finally, the supplementary information provided by Plaintiffs is not appropriate for a motion for reconsideration, as this information could have been originally presented in Plaintiffs'responses to Defendants'Motion for Partial Summary Judgment and was not.

Respectfully submitted December 5, 2005. s/ Carmen N. Reilly__________________________ John R. Riley Kevin J. Kuhn Carmen N. Reilly Attorneys for Defendants Western Door and Cristobal Bonilla Montgomery Little & McGrew, P.C. 5445 DTC Parkway, Suite 800 Greenwood Village, CO 80111 Phone: (303) 773-8100 Fax: (303) 220-0412 [email protected]

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Case 1:04-cv-00332-REB-CBS

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CERTIFICATE OF SERVICE I hereby certify that on December 5, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses [email protected] [email protected] [email protected]

s/ Carmen N. Reilly______________________ John R. Riley Kevin J. Kuhn Carmen N. Reilly Attorneys for Defendants Western Door and Cristobal Bonilla Montgomery Little & McGrew, P.C. 5445 DTC Parkway, Suite 800 Greenwood Village, CO 80111 Phone: (303) 773-8100 Fax: (303) 220-0412 [email protected]

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