HomeMy WebLinkAbout2023CV30993 - Smith-Acree v. City, et al. - 09 - City Answer to Amended ComplaintDISTRICT COURT, LARIMER COUNTY, COLORADO
201 LaPorte Ave., Ste. 100
Fort Collins, CO 80521
(970) 494-3500
COURT USE ONLY
Plaintiff: MARGARET SMITH-ACREE
v.
Defendant: CITY OF FORT COLLINS, and
TRANSFORT BUS SERVICES
Attorneys for Defendant
Andrew W. Callahan, #52421 – acallahan@wicklaw.com
Cassie L. Williams, #58279 – cwilliams@wicklaw.com
WICK & TRAUTWEIN, LLC
323 South College Avenue, Suite 3
Fort Collins, CO 80522
Phone & Fax Number: (970) 482-4011
Case No.: 2023 CV 30993
Division: 4A
ANSWER TO AMENDED COMPLAINT
COMES NOW Defendant City of Fort Collins (the “City”), by and through its attorneys,
Wick & Trautwein, LLC, and for its Answer to Plaintiff’s Amended Complaint states as follows:
GENERAL ALLEGATIONS AND PARTIES
1. The City, upon information and belief, admits the allegations contained in
paragraph 1 of the Amended Complaint.
2. The City admits the allegations contained in paragraph 2 of the Amended
Complaint.
3. In response to the allegations contained in paragraph 3 of Plaintiff's Amended
Complaint, the City states that Transfort Bus Services is an administrative subdivision of the City
of Fort Collins and is not an independent legal entity with the capacity to sue or be sued.
Accordingly, Transfort Bus Services is not a properly named party.
4. The City admits the allegations contained in paragraph 4 of the Amended
Complaint.
DATE FILED: March 6, 2024 1:26 PM
FILING ID: A1BE8B0D8EF95
CASE NUMBER: 2023CV30993
Answer to Amended Complaint
Page 2 of 6
5. The City admits the allegations contained in paragraph 5 of the Amended
Complaint; however, to the extent that this paragraph alleges claims against the City, all such
allegations are denied.
6. The allegations contained in paragraph 6 of the Amended Complaint appear to state
legal conclusions about governing law, although the meaning is difficult to understand. To the
extent necessary, the City denies the allegations.
7. The City admits that it received notice in accordance with C.R.S. § 24 -10-109;
however, the City denies that it received service on June 2, 2021. The City received notice on June
7, 2021.
8. The City admits that the paragraph accurately quotes, in part, C.R.S. § 24-10-
106(1)(a), but the City denies all other allegations which may be implied or inferred therefrom.
FACTUAL ALLEGATIONS
9. The City incorporates by reference its above responses and denials as if fully set
forth herein.
10. The City admits that Plaintiff was a passenger on a Transfort bus on December 23,
2020, that was operated by a City employee. All other allegations in this paragraph are denied. The
City further states that Transfort Bus Services is not a distinct legal entity different from the City
and does not have the legal status to sue or be sued.
11. The City admits, upon information and belief, the allegations contained in
paragraph 11 of the Amended Complaint.
12. The City denies the allegations contained in paragraph 12 of the Amended
Complaint.
13. The City lacks information sufficient to admit or deny the statements contained in
this paragraph. Accordingly, to the extent that this paragraph alleges claims against the City, all
such allegations are denied.
14. The statements contained in paragraph 14 are denied as written. The City admits
that the bus was turning right from Maple Street onto N. College Avenue when Plaintiff fell off
the scooter onto her left side. All other allegations in this paragraph are denied.
Answer to Amended Complaint
Page 3 of 6
15. The City has insufficient information to admit or deny the allegations contained in
paragraph 15 of the Amended Complaint regarding Plaintiff’s ability to get up on her own and,
therefore, denies the same. Upon information and belief, the City admits the remainder of the
allegations contained in paragraph 15 of the Amended Complaint.
16. The City denies the allegations contained in paragraph 16 of the Amended
Complaint.
FIRST CLAIM FOR RELIEF
(Negligence Against Defendants)
17. The City incorporates by reference its above responses and denials as if fully set
forth herein.
18. The City admits that it has a duty to use reasonable care and prudence towards
members of the public while they are passengers on a City-owned-or-operated transit service when
such service is under the City’s control. As to the extent of the duty owed to Plaintiff under the
particular circumstances on December 23, 2020, the City denies the allegations contained in
paragraph 18 of the Amended Complaint. The City denies that it owed a duty to “secure Plaintiff
in her scooter” as alleged. All other allegations in this paragraph are denied.
19. The City denies the allegations contained in paragraph 19 of the Amended
Complaint.
20. The City denies the allegations contained in paragraph 20 of the Amended
Complaint.
21. The City denies the allegations contained in paragraph 21 of the Amended
Complaint.
22. The City denies the allegations contained in paragraph 22 of the Amended
Complaint.
23. The City denies the allegations contained in paragraph 23 of the Amended
Complaint.
24. The City denies the allegations contained in paragraph 24 of the Amended
Complaint.
Answer to Amended Complaint
Page 4 of 6
25. The City denies the allegations contained in paragraph 25 of the Amended
Complaint.
26. The City denies the allegations contained in paragraph 26 of the Amended
Complaint.
PRAYER FOR RELIEF
The City denies all allegations contained in the “Prayer for Relief” section of the Amended
Complaint.
GENERAL DENIAL
The City denies all allegations not expressly admitted.
AFFIRMATIVE DEFENSES
1. Plaintiff’s claims against the City are governed, barred and/or limited by the
Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq.
2. Plaintiff’s claims for damages are limited by C.R.S. § 24-10-114.
3. Plaintiff’s claims for damages are limited by C.R.S. § 13-21-111.6.
4. Plaintiff’s claims for damages are barred or limited by C.R.S. § 13 -21-111,
regarding comparative negligence, because Plaintiff contributed to her own damages, if any, in the
following negligent acts:
a. Plaintiff had the opportunity and ability to transfer and sit on a stationary bus seat,
rather than remaining seated on top of her three-wheeled mobility device, while the
bus was in motion. Plaintiff chose to remain seated on top of her device despite the
fact that nearby seats were open and available directly across from, and directly
behind, her device.
b. Plaintiff failed to follow the common practice of restraining or supporting herself
while the bus turned onto N. College Avenue. On the bus in question, there is an
obvious solid panel with an indented hand-grip located directly next to the area
where Plaintiff’s mobility device was located at the time of the incident. Plaintiff
Answer to Amended Complaint
Page 5 of 6
chose not to hold on to this or any other stationary grip at the time when the bus
began to turn.
c. Plaintiff failed to request the use of another available restraint system, even though
an option for additional restraint was available.
5. Plaintiff may have failed to mitigate her damages, if any.
6. Plaintiff’s damages, if any, may have been caused by a nonparty at fault.
7. The City reserves the right to add or delete affirmative defenses in the future as
appropriate.
WHEREFORE, Defendant City of Fort Collins prays that this action be dismissed in its
entirety, with prejudice; that judgment be entered in its favor and against Plaintiff; and that the
Court further assess court costs, expert witness fees, and any such further relief as the Court deems
just and proper against Plaintiff and in favor of Defendant City of Fort Collins.
JURY DEMAND
The City hereby demands a trial to a jury of six on all issues herein. The statutory jury fee
is remitted herewith.
Respectfully submitted this 6th day of March, 2024.
WICK & TRAUTWEIN, LLC
By: s/_Andrew Callahan___________
Andrew W. Callahan, #52421
Cassie L. Williams, #58279
Attorneys for Defendant City of Fort Collins
Answer to Amended Complaint
Page 6 of 6
CERTIFICATE OF ELECTRONIC FILING
The undersigned hereby certifies that a true and correct copy of the foregoing Answer to
Amended Complaint was filed with the Court via Colorado Courts E-filing System (CCES) this
6th day of March, 2024 and served on all counsel of record.
/s/ Jody L. Minch