Free Motion for Leave - District Court of Colorado - Colorado

Case 1:03-cv-01654-MSK-MEH

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 03-CV-1654-MSK-OES RONAN TYNAN, an individual Plaintiff, v. THE BROADMOOR HOTEL, INC., a Colorado corporation; TUBULAR SPECIALTIES MANUFACTURING, INC., a California corporation; Defendants.

DEFENDANT BROADMOOR HOTEL'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT [document 135]

Defendant, THE BROADMOOR HOTEL, INC. (the Broadmoor), by and through its attorneys, OVERTURF & McGATH, P.C., pursuant to Fed.R.Civ.P 56(c), D.C.Colo.LCivR 7.1(c), and 56.1 and MSK Civ. Practice Standard, Part V.H.3.b.1., respectfully replies to Plaintiff's Response to Motion for Summary Judgment (hereinafter Response) as follows: I. REPLY TO MSK CIV. PRACTICE STANDARD, PART V.H.3.B.1. INFORMATION (a) Dr. Tynan has the burden of proof with respect to this motion: (1) There was no spoliation of evidence; (2) Plaintiff's negligence claim premised on the doctrine of res ipsa loquitur; and (3) Plaintiff's negligence per se claim against the Broadmoor were dismissed with prejudice on August 19, 2004. (b) The Plaintiff has presented the Court with no evidence that the Broadmoor failed to exercise reasonable care to protect against dangers of which it knew or should have known. The

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Plaintiff's attempt to satisfy his burden of proof with inferences raised by the Broadmoor's alleged spoliation of evidence, and the doctrines of negligence per se and res ipsa loquitur, and the imputed negligence of another party or a designated non-party to this action, evince a profound misunderstanding of the law underlying these inferences and this Court's prior rulings. (c) The Broadmoor stands by its recitation of undisputed facts as set forth in its original Motion for Summary Judgment. II. REPLY TO INTRODUCTION Plaintiff's response borders on the frivolous. There was no spoliation of evidence. Any action taken by the Broadmoor which Plaintiff characterizes as destruction of evidence occurred in the ordinary course of business before the Broadmoor received notice of this litigation. Other evidence (work orders) that Dr. Tynan apparently alleges was destroyed by the Broadmoor never existed in the first instance. It is rather astounding that Dr. Tynan now argues that the doctrines of negligence (res ipsa loquitur) and negligence per se and should defeat Defendant's Motion for Summary Judgment. This Honorable Court already ruled that Plaintiff's negligence and negligence per se claims were dismissed with prejudice on August 19, 2004. In addition, Dr. Tynan never pled any theory sounding in res ipsa loquitur prior to responding to the Motion for Summary Judgment, and the facts in this case do not support such a theory. Dr. Tynan's theory, that his expert's hypothetical examination of the six original screws attaching flanges A and B to the wall would have revealed relevant evidence about the condition of the shower seat, is not supported by the evidence presented by Mr. Barnes' whose opinion is based upon an examination of the wrong screws. The Broadmoor also contends that Mr. Barnes'

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opinion is fatally flawed in that he did not use a scientifically reliable methodology and did not reliably apply this methodology to the facts and data obtained. Contrary to Footnote 1 of the Response (See, p. 3), the Broadmoor takes the position that it is entitled to summary judgment even if the testimony of Mr. Barnes is not excluded. Mr. Barnes basically hypothesizes that certain physical evidence shows that there was a repair to the shower seat prior to the accident in this case. Even if this speculation were correct, there is no evidence that the Broadmoor had constructive or actual knowledge that this imaginary repair did not completely correct the supposed dangerous condition. Evidence of a repair alone, without more, is insufficient to create a genuine issue of material fact concerning whether the Broadmooor knew of a dangerous condition on its property (See, Casey v. Christie Lodge Owners Association, 923 P.2d 365, 367 (Colo. App. 1996). III. REPLY TO FACTS It is undisputed that the injury that is the subject matter of this case occurred on July 21, 2002. Immediately after the accident, Dr. Tynan gave his inspirational speech as planned (See, Tynan deposition, Exhibit A-6 to the original Motion, p. 198, l. 23 ­ p. 199, l. 19). It was only after this speech was made that Broadmoor personnel were able to meet with Dr. Tynan regarding the accident (See, Case/Incident Report, Exhibit A-9). At this time, Dr. Tynan told Andrew Benger, who investigated that accident on behalf of the Broadmoor, that he did not need medical attention and was not injured (See, Exhibit A-9). He told another representative of the Broadmoor, Yolanda Hunter, that he was fine and did not need medical attention (Exhibit A-10, p. 202, l. 19-24). He also stated to Ms. Hunter that he was not the kind of individual who would

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bring a lawsuit (Exhibit A-10, p. 203, l. 5-14). Thus, the Broadmoor had no reason to believe any litigation would ever result from the accident.1 The shower seat was repaired later in the day on July 21, 2002, because the room was needed for use by another guest (See, Affidavit of John Brett, Exhibit A-11, ¶¶ 5 and 6) and Mr. Brett was in a hurry to get the shower seat back on the wall so that Room 4259 could be put back in service (Brett deposition, Exhibit A-12, p. 39, l. 16-21). At that time of the repair, the six screws that attached flanges A and B to the wall were discarded in a manner consistent with the Broadmoor's usual practice (Exhibit A-11, ¶ 6, Exhibit A-12, p. 47, l. 6-21). Because the repair was of an emergent nature, there was no work order generated for the repair (Exhibit A-11, ¶5). It is undisputed that Plaintiff's counsel did not write the Broadmoor concerning possible litigation until September 24, 2002. This letter was not received by the Broadmoor until September 27, 2002 (See, Response, Exhibit 6). Once the Broadmoor received Mr. Duffy's letter, it made a diligent, good faith effort to preserve the information that had been requested. (See, Affidavit of John Brett, Exhibit A-11, Affidavit of Kyle Hybl, Exhibit A-13, Affidavit of Terry McHale, Exhibit A-14, Affidavit of Michael Rolla, Exhibit A-15). By September 27, 2002, the Preventive Maintenance Program (PMP) worksheets for inspections of Room 4259 had been discarded in the ordinary course of business (See, Affidavit of Michael Rolla, Exhibit A15, ¶¶ 7 and 8). Further, the PMP checklists contain no information whatsoever regarding shower seats, (See, representative PMP Checklist, Exhibit A-16). Thus, even if the PMP checklists for inspections done for Room 4259 on or before the accident were available, it is only
While Dr. Tynan testified that he called the Broadmoor Hotel a few days after the accident, Dr. Tynan could not provide any information regarding the call and the Broadmoor has no record of the call having been made. Even in this conversation, Dr. Tynan did not indicate that he would bring a lawsuit against the Broadmoor (See, Exhibit A-10, p. 203, l. 15 ­ p. 204, l. 12).
1

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speculation that they would contain any information regarding the shower seat or its fastening system. Plaintiff makes much of the fact that "the Broadmoor witnesses were called together prior to their depositions to make sure they got their stories straight." (See, for example, Response, pp. 5 and 7). Dr. Tynan makes specific reference to Ms. Wedor's deposition testimony at p. 13, ll. 9 ­ p. 14, l. 4. However, Dr. Tynan fails to inform the Court that this testimony was corrected (See, Wedor deposition, Exhibit A-17, Amendment to Testimony). The apparent implication, that Broadmoor employees were instructed as to how they should answer deposition questions and perhaps not give truthful answers, is a false one (See, Exhibit A-13, ¶ 7). Dr. Tynan argues that there are no documents corroborating the frequency and timing of the inspections of Room 4259. This argument has little merit. The Plaintiff does not, and could not argue that the Room was not inspected. The evidence before the Court is that the Broadmoor has always had some system in place for inspecting its rooms.2 Since 1998, the Broadmoor has had a preventative maintenance program in place (Exhibit A-4 to the original Motion, p. 14, l. 5 - 7). Pursuant to this program, every room at the Broadmoor is to be inspected once a quarter (Exhibit A-5 to the original Motion, p. 21, l. 19-21). When the inspections reveal even a little problem, the engineering department is called to correct the problem (Exhibit A-5 to the original Motion, p. 30, l. 24 ­ p. 31, l. 5). Moreover, there is specific evidence that the handicapped shower seats were, in fact, inspected (Exhibit A-4 to the original Motion, p. 14, l. 5-21). The Plaintiff has provided no evidence whatsoever that the

Prior to 1998, the Broadmoor utilized blocked room inspections (Exhibit A-4, to the original Motion, p. 10, l. 10 ­ p. 11, l. 10).
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Broadmoor did not substantially comply with the PMP or that the PMP fails to meet the standard of care in the hotel industry. IV. REPLY TO ARGUMENT No matter how Plaintiff tries to reframe the evidence, he has failed to create a genuine issue of material fact as to whether the Broadmoor had actual or constructive knowledge of a dangerous condition on its property. Plaintiff's argument that the shower seat did not comply with ADA standards is meaningless because the Court has already dismissed Plaintiff's negligence and negligence per se theories of liability with prejudice. Plaintiff's argument that spoliation of evidence has occurred in this case is based on a manipulation of the facts and argument of counsel. The true facts in this case and legal authority do not support this theory. A. There has been no spoliation of evidence in this case. While it is true that the Broadmoor may have failed to maintain some evidence in this case, as the affidavit testimony set forth above clearly reveals, all such evidence was discarded before the Broadmoor received notice of this litigation, in the ordinary course of business. In the case of the alleged destruction of the work order, that document never existed (Exhibit A-11, ¶ 5). Dr. Tynan's assertion (Response p.7) that because work orders may be generated for projects, that one actually was generated with respect to the repair of the shower seat is pure speculation. Dr. Tynan's assertion that the Broadmoor cannot dispute that it destroyed evidence after it was advised of litigation (Response, p. 7) is based on a quote from Mr. Rolla's deposition that was taken out of context. Just lines prior to the quote chosen by Dr. Tynan, Mr. Rolla explained that none of the PMP forms were discarded after the Broadmoor received notice of Dr. Tynan's

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lawsuit (See, Response Exhibit 9, p. 40, l. 17 ­ 25). In his affidavit (Exhibit A-15, at ¶ 8), Mr. Rolla makes it abundantly clear that no PMP checklists were discarded after the Broadmoor received notice of Dr. Tynan's lawsuit. Perhaps this is why United States Magistrate Judge Schlatter warns against imposing sanctions that "are premised on the word games which lawyers play with witnesses." The Gates Rubber Company v. Bando Chemical Industries, Limited, 167 F.R.D. 90, 114 (D. Colo. 1996). Dr. Tynan's remaining contentions (Response, p. 7) are merely red herrings intended to draw the Court's attention away from the issue of Plaintiff's inability to show the Broadmoor's constructive or actual knowledge of a dangerous condition. For example, the issue of whether the Broadmoor attained perfection in achieving its goal to inspect each room once a quarter, or how exactly the shower seat was maintained, whether bubble wrapped or not, or the number of PMP technicians, have no bearing on this issue. Plaintiff again implies that the Broadmoor has been dishonest, because Broadmoor witnesses "got together to get their stories straight." (Response, p. 7). At the same time, Dr. Tynan complains that the testimony of Broadmoor witnesses was inconsistent (Ibid). In truth, as Mr. Hybl points out (Exhibit A-13, ¶7) there was no dishonesty. The facts in this case do not support giving spoliation of evidence instruction to the jury. Each case cited by the Plaintiff in support of this proposition can be distinguished on its facts. There are good reasons why no court would impose sanctions on a party defendant who discarded evidence in the normal course of business before it had received notice of litigation.3

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Undersigned counsel has found no authority where sanctions were imposed for discarding evidence prior to notice that litigation had been initiated.

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As in this case, a plaintiff could tell a defendant he was fine, did not need medical attention, and would not file a lawsuit. Then, after the unsuspecting defendant discarded potential evidence in the case, the plaintiff files his action and demands a sanction. The public policy considerations of imposing sanctions in this circumstance, and plain common sense, argue against this result. In a remarkably similar situation, Magistrate Schlatter, after the entry of his Site Inspection Order, in response to Plaintiff, Gate's, allegations of spoliation of evidence, stated: Gates has argued here, as it has argued through these proceedings, as follows: Parties employed by Bando admit to throwing away a box of material; no one can know what was in the box; testimony from the parties who discarded the material is insufficient to prove anything; therefore, Gates is entitled to an inference that the box contained material which would be harmful to Bando. If this were the law, discarding the trash would become a strict liability discovery offense. (Gates, supra, at p. 115). Here, before the lawsuit was filed, Broadmoor employees discarded PMP checklists that contain no reference to the handicapped shower seats and discarded used screws. Plaintiff wishes to exalt this throwing away of the trash to a spoliation of evidence. As in Gates, Magistrate Schlatter's reasoning would be appropriate in this case. B. Plaintiff has failed to present any evidence of the Broadmoor's actual or constructive knowledge of a dangerous condition on its property. 1. There is no physical evidence showing that the Broadmoor knew that the shower seat was unstable. Plaintiff states that the presence of a one-inch screw in the shower seat's fastening system is evidence of a prior repair (Response, p. 10). However, Dr. Cornelissen notes that it is likely the one-inch screw was supplied by the manufacturer (Cornelissen Affidavit, Exhibit A18, ¶ 8). Further, when Messrs. Wurm and Brett actually repaired the shower seat, they used screws that were both "longer and thicker" than the original screws (Exhibit A-12, p. 45, l. 9-

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22). Plaintiff states that the presence of blue anchors is evidence of a prior repair because Mr. Mansuri testified that, "only green anchors could have been shipped [by Tubular Specialties Manufacturing, Inc. (TSM)] with the seat." (Response, p. 11). However, Dr. Cornelissen, as recently as this year, purchased blue Expandet anchors from a TSM distributor (Exhibit A-18, ¶ 6). Mr. Mansuri testified that TSM sells the shower seat only through its distributors (Mansuri deposition, Exhibit A-19, p. 106, l. 8- 18). Dr. Tynan contends that score marks on Flange B show evidence of a prior repair (Response, p. 11). However, Dr. Cornelissen testified that all of the score marks can be accounted for by the four documented instances of removal and reinstallation and that certain of the score marks can only be accounted for by the larger screws that were installed and removed after the incident involving Dr. Tynan (Exhibit A-18, ¶5). Finally, Plaintiff contends that "an examination of the remaining screws also shows that the seat was loose." (Response, p. 11). However, it is uncontested that Mr. Barnes examined the wrong screws and, as a result, his examination of the wrong screws proves nothing (Exhibit A-18, ¶ 7). The forgoing does not constitute disputed evidence of a possible prior repair of the shower seat as Plaintiff suggests. Further, even if the shower seat had been repaired, the Broadmoor rightly could assume that any dangerous condition had been corrected. This socalled repair evidence offered by Dr. Tynan and Mr. Barnes, "[falls] outside the range where experts might reasonably differ, and where the jury must decide among the conflicting views of different experts...Daubert, 509 U.S. at 596, 113 S.Ct. 2786." Kumho Tire Company, LTD. v. Carmichael 526 U.S. 137, 153, 119 S.Ct.1167, 1177, 143 L. Ed. 2d 238 (1999). Instead, it is an invitation to the jury to engage in wild speculation and thus, should not be permitted.

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Plaintiff's contention that Dr. Cornelissen's supplemental report regarding load capacity constitutes evidence of an ADA violation is a misreading of this report (See, Exhibit A-18, ¶¶ 2 and 3). Dr. Cornelissen also notes that the other alleged ADA violation, the dimensions of the shower seat, played no role in the accident (See, Exhibit A-18, ¶ 4). 2. The Doctrine of res ipsa loquitur should not be applied in this case. Because the Court dismissed Plaintiff's negligence claim with prejudice, his argument regarding the doctrine of res ipsa loquitur has no bearing in this case. Also, Dr. Tynan raises this theory for the first time in his Response brief. It is noticeably absent from the Complaint and Amended Complaint. By way of analogy to Powell v. City and County of Denver, 973 F. Supp. 1198, 1203 n. 4 (D. Colo. 1997), this late disclosure has "deprived [this Defendant] of the chance to discover facts and obtain expert testimony that might have disposed of [plaintiff's] argument." Thus, Plaintiff's res ipsa loquitur argument in this case should not be allowed. In order to satisfy the second test enunciated in Ravin v. Gambrell, 788 P.2d 817, 822 (Colo. 1990) that "responsible causes other that the defendant's negligence are sufficiently eliminated by the evidence", Plaintiff resorts to the alleged repair theory and the Broadmoor's alleged non-delegable duty to its guests (Response, p. 14-15). Even if these arguments, which are debunked elsewhere in this brief (See, pp. 8-10 and p. 12) had merit, Plaintiff fails to inform the court of evidence showing that wall construction at the shower seat location by M. A. Mortenson, a designated non-party, was not in compliance with the architect's drawing, and that co-defendant, TSM, recommended Expandet anchors for an application not recommended by the

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anchor manufacturer (See, Response Exhibit 11, p. 9 of 11, conclusions 2 and 3)4. These factors alone defeat Plaintiff's res ipsa loquitur theory. If one assumes that Plaintiff can meet Ravin's second test, the doctrine of res ipsa loquitur should not be applied in this case, because, as this Court previously recognized, this would be inconsistent with an action brought pursuant to the Colorado Premises Liability Act. As a practical matter, the Premises Liability Act states that Dr. Tynan "may recover for damages caused by the landowner's unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known." [See, C.R.S. § 13-21115(3)(a)(c)(I)]. However, the doctrine of res ipsa loquitur, as enunciated in Ravin, does not require that the Plaintiff show that a defendant acted unreasonably or that the defendant knew or should have known of the alleged dangerous condition on the property. Thus, instructing the jury as to the duty or standard of care owned by a defendant under the doctrine of res ipsa loquitur, while at the same time, instructing the jury as to the different standard of care set forth in the Premises Liability Act would be confusing. This dichotomy has prompted at least one state district court, under the authority of Vigil v. Franklin, 103 P.3d 322 (Colo. 2004), which clarifies that the Premises Liability Act preempts the common law creation of all landowner duties, including res ipsa loquitur, to dismiss a similar claim with prejudice (See, Motion and Order in Lavin v. Rock Bottom Restaurants, Inc., Exhibit A-20) 3. The Doctrine of negligence per se cannot be applied in this case.

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In fact, in the Final Pretrial Order, Plaintiff alleges that co-defendant, TSM, failed to provide a shower seat that was compliant with the ADA, failed to perform tests regarding weight limitations, and failed to warn of such limitations. Clearly, the Broadmoor had no control over these alleged wrongs.

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On August 19, 2004, this Honorable Court dismissed Dr. Tynan's negligence per se and negligence claims with prejudice. Nothing in Plaintiff's Response, including Plaintiff's mistaken reading of Dr. Cornelissen's report and his apparent contention that the shower seat dimensions played a role in the accident, justifies a different result. Plaintiff cites Scott v. Matlack, 39 P.3d 1160 (Colo. App. 2002), for the plainly wrong assertion that evidence of ADA regulations could be used as evidence in this case (Response p. 15). Scott's actual holding is that OSHA regulations could be used as evidence of the standard of care in a negligence action. (Scott at p. 1166). However, this Court has also dismissed Plaintiff's negligence claim. Largo Corporation v. Crespin, 727 P.2d 1098 (Colo. App. 1986) is inapposite because the Court in that case actually allowed Plaintiff's claims, based in negligence and negligence per se to go to the jury (Largo at p. 1100). There are no such claims in this case. Similarly, Plaintiff cites Bodah v. Montgomery Ward & Co Inc., 724 P.2d 102 (Colo. App. 1986) for the proposition that a plaintiff is entitled to a negligence per se instruction regardless of whether the Defendant was aware it was violating the law (Response, p. 15). However, again in Bodah, the court actually allowed a negligence per se claim to go to the jury. (Bodah at 104). Because this Honorable Court has dismissed both Plaintiff's negligence and negligence per se claims with prejudice, none of this authority is relevant to this case. C. The Broadmoor's Non-Delegable Duty to its Guests does not Prevent Summary Judgment Herein. While it is true that a Colorado landowner cannot delegate its duty to maintain a safe premises, this statement of law has no bearing on whether the Broadmoor had actual or constructive knowledge of a dangerous condition on its property. Under the Colorado Premises

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Liability Act, knowledge of a dangerous condition is a condition precedent to the existence of any duty, delegable or otherwise. All of the cases cited by the Plaintiff involve an open and obvious (patent) condition on property: in Springer v. City and County of Denver, 13 P.3d 796 (Colo. 2000), a threshold plate that protruded from the floor at a height approximately twice that called for in the building plans; in Kidwell v. K-Mart Corporation, 942 P.2d 1280 (Colo. App. 1997), an icy sidewalk; in Jules v. Embassy Properties, Inc., 905 P.2d 13 (Colo. App. 1995), icecovered steps; and in Teneyck v. Roller Hockey Colorado, LTD, 10 P.3d 707 (Colo. App. 2000), being struck in the head by a hockey puck while attending a roller hockey game. Here, as in Soffard v. Schindler Elevator Corporation, 954 F.Supp. 1459 (D.C. Colo. 1997), the condition at issue was a latent one. Both in Soffard and this case, maintenance personnel testified that there had been no prior problems with the elevator ceiling grid or the handicapped shower seats. (Cf. in agreement, Casey v. Christie Lodge Owners Association, 923 P. 2d 365, 366 (Colo. App. 1996), which involved bunk bed storage doors falling open.) Even Dr. Tynan has not taken the position that the defect in the shower seat fastening system was an obvious one. He testified that immediately prior to the accident, he did not notice whether the seat was loose (Exhibit A-6 to the original Motion, p. 197, l. 15 - p. 198, l. 4; p. 362, l. 7-20). The law is not such a harsh mistress that she would impose liability when a defendant is not aware that a dangerous condition exists on its property. The statutory requirement of prior knowledge of a dangerous condition is not satisfied by ipse dixit expert testimony of a purported repair (See, General Electric Company v. Joiner, 522 U.S. 136, 146, 118 S.Ct. 139, L.Ed.2d 508, 519 (1977), the doctrines of res ipsa loquitur and

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negligence per se, or an inapplicable argument regarding non-delegable duty. As a result, summary judgment in this case is appropriate. WHEREFORE, this Defendant respectfully requests that this Honorable Court grant summary judgment in its favor, and dismiss this case with prejudice. Respectfully submitted this 25th day of October, 2005. OVERTURF & McGATH, P.C. /s/ Richard K. Rediger Original signature on file at Overturf & McGath

_________________________________________ Richard K. Rediger 625 E. 16th Avenue, Suite 100 Denver, CO 80203 303.860.2848 (ph) 303.860.2869 (fax) Attorney for Defendant The Broadmoor Hotel, Inc.

CERTIFICATE OF SERVICE I hereby certify that on this 25th day of October, 2005, I electronically filed the foregoing DEFENDANT BROADMOOR HOTEL'S REPLY TO PLAINTIFF'S RESPONSE TO MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to the following counsel: David G. Palmer, Esq. Brian L. Duffy, Esq. Naomi G. Beer, Esq. GREENBURG TRAURIG LLP 1200 ­ 17th Street, Suite 2400 Denver, CO 80202 Counsel for Plaintiff Bradley Ross-Shannon, Esq. Michael O. Frazier, Esq. The Ross-Shannon Law Firm, P.C. 12596 W. Bayaud Avenue, Suite 380 Lakewood, CO 80228 Counsel for Defendant, Tubular Specialties

Trish Schart

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